David A. Andelman, visiting scholar at the Center on National Security at Fordham Law, wrote an op-ed for CNN about President Trump’s secret war powers memo.
A key question of who has the right to declare war — Donald Trump or Congress (as the US Constitution demands) — is quietly playing out these days, largely out of sight.
The outcome of this potentially monumental dispute could keep the world safe or plunge it into sudden and unexpected conflict — with catastrophic consequences.
Since 9/11, American presidents have been operating under the assumption that they could effectively take the nation to war with virtual impunity. Now, Donald Trump has tried to enshrine this concept in a secret memo without any approval by Congress.
Senator Tim Kaine (D-VA) unveiled the existence of the memo earlier this month, when he asked Secretary of State Rex Tillerson to release the document. So far, neither Tillerson nor Congress has responded.
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The President has already opened the question of whether he’d violated the limit of his war-making powers by his military actions in Syria.
Last April, following evidence of the use of chemical weapons against his own people by Bashar al-Assad, Trump ordered a strike by 59 Tomahawk cruise missiles that seemed to have had little lasting effect beyond solidifying Russian support of the Syrian dictator.
Trump’s action was in sharp contrast to that of President Obama, who threatened to launch a strike on Syria for similar use of such weapons but backed off at the last minute in the absence of congressional authorization, which he recognized he was most unlikely to receive.
In each case, the presidents had set up a “red line” which, if the enemy crossed it, would be met by a sharp military response.
I’m heading up a project at the Center on National Security of Fordham Law School on red lines and their anatomy — when they might be effectively used and when they are grossly misused. Obama’s refusal to react to Syria’s abuse of chemical weapons called into question the red line he had established, a line that Assad leaped across with impunity since he was met with no military response.
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In the critical case of North Korea, Ackerman contends the clock started when President Trump declared the existence of such a danger in a speech to the United Nations last September 19, which would mean his opportunity to bloody Kim’s nose, without Congressional approval, ran out on November 18.
Of course, if the North Korean despot were to launch his own offensive attack on any American facility or territory, all such restraints are instantly removed and Trump would have the right to respond, as he has threatened, with full “fire and fury.”
Enter, now, the secret memo that may give Trump broad authority to act on any whim, a document to which only a small cadre in his administration are privy.
