Wednesday, November 26, 2014

Senator Paul's Proposal to Declare War Against the Islamic State Group

     Senator Rand Paul (R-KY) who is expected to be a 2016 presidential contender has struggled to dispel preconceived notions regarding his stance on US foreign policy.  Specifically, Paul is trying to shake the notion that he is an isolationist.  Since Paul has gained more and more attention as a serious presidential candidate (he has won the straw poll at CPAC two years in a row) he has been more outspoken on several issues, foreign policy included.

     Now Senator Paul has decided to enter the fray of authorizing force against the Islamic State group.  Currently, there are six proposals of varying degrees in front of Congress.  Paul's stands out because his resolution draft goes one step further from simply authorizing the president to use force, his proposal declares war against the Islamic State group - the first such declaration since World War II.  

     Paul's war declaration proposal is in line with Congress's authority under Article I Section 8 Clause 11 of the Constitution - "The Congress shall have the Power to...declare war."  As former Bush administration lawyer Jack Goldsmith wrote;
"It’s not clear why Senator Paul wants to make the conflict against the Islamic State the sixth declared war in U.S. history.  Perhaps it is because Article I, Section 8 expressly gives Congress the power “To declare war,” and not the power to authorize force.  But this alone would not be a good reason.  Since at least the Quasi-War in the 1790s, and continuing until today, it has been clear that Congress has the power – perhaps implied in the Declare War clause and surrounding war-related clauses – to authorize the President to use force in the absence of a declaration of war...There is much debate about the original understanding of the Declare War clause, and the role of declared wars at the founding.  At least one role for declared wars was probably to trigger various international law rights and duties (of belligerency and neutrality) under international law.  But whatever role declared wars served under international law in the 1780s, and whatever the original understanding of the Declare War clause might have been, international law has changed quite a lot.  Since World War II, “war” has generally been replaced with concepts like “use of force (in the U.N. Charter) and “armed conflict” (in the Geneva Conventions).  In the modern world, it is not clear what if any purpose might be served under international law by a war declaration, and that is perhaps why there have been few, if any, war declarations in any of the hundreds of wars since World War II…Under domestic law, a declaration of war is not a substitute for an authorization of force.   Every declared war in U.S. history also contained a congressional authorization for the President to use force.  So too, does Senator Paul’s."
     It is strange that Senator Paul would seek to formally declare war against the Islamic State.  In today's world, the United States is engaged in armed conflicts with non-state actors.  Declaring war could be seen as bolstering the standing of enemies in recognizing them for more than they are.  According to Steve Vladeck, Professor of Law at American University and co-editor-in-chief of the legal blog Just Security, it is a dangerous precipice to recognize the Islamic State as a state.  In a discussion at New York University's Washington, DC campus in September, Vladeck stated that during the Civil War, President Lincoln refused to recognize the Confederacy as a state because it legitimized them.

     A declaration of war against the Islamic State might run contrary to eschewing the legitimization that President Lincoln sought.  It is also quite possible that Senator Paul is trying to bolster Congress's standing within the American governance system against perceived executive overreach in relying on previous and potentially irrelevant statutory authority to wage an offensive against the Islamic State group.  By explicitly noting Congress's power to declare war under the Constitution, Paul is asserting the checks and balances over the president.  It is clear that the president under the Constitution has the power to defend the nation, however, many legal scholars indicate that it is the Congress that must initiate offensive military action.  

    Besides the declaration of war, Paul's proposal is not much different than others presented.  It seems unlikely that the 113th Congress will vote on an authorization in its few remaining days.  With Paul's proposal, he has made his intentions clear that he is not an isolationist and he wants to have some skin in the game.  The resolution will undoubtedly serve as a resume builder for the 2016 campaign cycle.  Regardless, Paul's proposal is further evidence that, as TIME dubbed him on their October 27, 2014 issue, he is "the most interesting man in politics."              

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