Nine Known Presidential Wars With No Congressional Declarations
Under the definitions of war and co-belligerency referenced above, the United States fought nine known presidential wars with no congressional declarations in violation of the Declare War Clause. In none of these conflicts has Congress declared war or otherwise by statute or joint resolution made a decision to change the condition of the nation from a state of peace to war.
Afghanistan. The United States has deployed approximately 10,000 troops to Afghanistan indefinitely to train, advise, and assist its military in a war against the Taliban. We also provide financial assistance to the Government of Afghanistan in common cause to defeat the Taliban. These actions make the United States at least a co-belligerent without a congressional declaration. The 2001 Authorization to Use Military Force delegated to the President the decision to become a belligerent or co-belligerent against the Taliban. The United States military is operating under the laws of war in Afghanistan, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Iraq. At present, the United States has deployed approximately 5,000 troops to Iraq to train and advise its military in its war against the Islamic State of Iraq and Syria (ISIS) or sister enemies of the Government of Iraq. We also provide substantial financial aid to Iraq in common cause to defeat ISIL. These actions make the United States at least a co-belligerent without a congressional declaration. The 2002 Authorization to Use Military Force delegated to the President the decision to become a belligerent or co-belligerent against the government of Iraq or otherwise. The United States military is operating under the laws of war in Iraq, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Libya. At present, the United States has deployed an indeterminate number of special operations troops to Libya to conduct patrols and advise local militias in a war against ISIS. We are also supplying weapons to Libya’s fragile unity government to make common cause in its wars against ISIS and rivals for power. These actions make the United States a co-belligerent in Libya’s multiple wars without a congressional declaration. The United States military is operating under the laws of war in Libya, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Yemen. At present, the United States is a co-belligerent with a Saudi-led military coalition fighting Houthi forces that previously ousted the Government of Yemen. The United States military is refueling coalition aircraft and supplying it with bombs and targeting intelligence. Senator Chris Murphy (D. Conn.) recently stated on NPR: “The U.S. is at war in Yemen today, there’s no doubt about it.” Congress has never declared the United States a co-belligerent in Yemen. The United States military is operating under the laws of war in Yemen, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Somalia. The United States is a co-belligerent with the Somali government in its war against Al- Shabab. We have deployed hundreds of troops to train the Somali National Army. We also conduct air strikes against the organization, which we have also proclaimed is an arm of Al-Qaeda. Congress has never declared that the United States is a co-belligerent with the Government of Somalia against Al-Shabab. The United States military is operating under the laws of war in Somalia, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Syria. The United States has conducted more than 7,000 airstrikes on Syrian territory without a congressional declaration of war. They airstrikes are scheduled to continue indefinitely. These acts of war were by the United States against Syria were not in self-defense. Syria has never threatened aggression against the United States nor declared war against us. In 2013, Congress was unconvinced by the White House that Syria then posed a sufficient threat to the United States to justify war or its authorization. The United States military is operating under the laws of war in Syria, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Pakistan. The United States conducts drone strikes and provides other military assistance to the Government of Pakistan in its wars against Pakistan Taliban or sister insurgents. That makes the United States a co-belligerent without a congressional declaration. Pakistan has also publicly protested United States invasion of its sovereignty with predator drone killings on its soil. It is unclear whether these protests are genuine or politically contrived. The United States military is operating under the laws of war in Syria, and doing things there which would be deemed war if done in the United States by a foreign nation or entity.
Al Qaeda. At present, the United States is at war with Al Qaeda—a non-state actor—everywhere in the world. Congress has never enacted a declaration of war against Al Qaeda. It delegated that decision to the President. The United States military is operating under the laws of war in fighting Al Qaeda.
ISIS. At present, the United States is at war with ISIS—a non-state actor—everywhere in the world. Congress has never enacted a declaration of war against ISIS. The President acted unilaterally. The United States military is operating under the laws of war in fighting ISIS.
Unknown Presidential Wars
The known presidential wars may not be exhaustive. Experience teaches that presidents commonly resort to secret wars. Examples include the secret war in Laos (1963-1975), and the secret bombing of Cambodia (1969-1973). At present, the President controls tens of thousands of Special Operations Forces (SOF) may have been deployed to fight secret wars as co-belligerents with allies. Congress should hold hearings in executive session or otherwise to discover the President’s use of SOF.