The Afghanistan pullout still leaves question of who engages – and disengages – the U.S. military

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Now that U.S. forces are out of Afghanistan, the United States is turning to some unfinished business – addressing an unresolved issue from the 18th century that is causing fresh controversy in the 21st.

Americans have resolved the question of individual prerogatives. (They were guaranteed by the ratification of the Bill of Rights in 1791, two years after the ratification of the Constitution.) They have settled the slavery issue. (It was outlawed by the 13th amendment in 1865.) They have resolved the issue of whether states can leave the union. (Secession was settled by the Civil War.) They have come to agreement on how long a president should serve. (Today no one questions the two-term limit imposed in 1951.)

But Americans still have not resolved the question of who makes the decision to deploy military forces abroad – when and for how long.

The irony is that this question has bubbled back into the American agenda after the end of a military engagement abroad, not before. The withdrawal of forces from Afghanistan has focused attention on how U.S. military might should be projected, how long it should remain active and whether the entire mechanism of making those decisions – a messy process full of contradictions and exceptions – should be overhauled.

Afghanistan is under Taliban control. How did we get here?

The question is being raised noisily by Representative Barbara Lee of California, a former chair of the Congressional Black Caucus. But qualms about the way U.S. forces are deployed in conflict areas are shared quietly by members of Congress of both parties. Ms. Lee, who was alone in voting against authorizing president George W. Bush to use military force to fight terrorism in the wake of the terrorist attacks of September, 2001, is no longer standing alone.

“This is the exact right time to focus on this question,” said Eric Talbot Jensen, a former deputy legal adviser for the U.S. Army’s Task Force Baghdad who now teaches at the Brigham Young University Law School. “The whole process since 2001 has let presidents of both parties go their own ways without regular congressional consultation. This is not an issue of party but of the prerogatives of the executive and legislative branches.”

This nettlesome examination of the role of those two branches of government – as urgent for a weak young country facing Barbary pirating and the British impressment of its mariners at the beginning of the 19th century as it is for a superpower with an impulse to police the globe at the beginning of the 21st – has bedevilled the United States for generations.

The Constitution itself offers little help – in fact, the ambiguity and contradictions in the 233-year-old document obscure rather than resolve the issue. In Article I, Section 8, Clause 11, it grants Congress the sole power to declare war. But in Article 2, Section 2, it designates the president as commander-in-chief.

One reading of these two constitutional provisions would suggest that once Congress declares war, the president conducts the war, a distinction Alexander Hamilton explained in his essay Federalist No. 69 when he wrote that the president’s power “would amount to nothing more than the supreme command of the military and naval forces, as first general and admiral.”

That worked, for example, in the undeclared war of 1798-1800 with France, waged mainly on the high seas in the Caribbean with specific congressional authorization for U.S. involvement. It worked, too, for both world wars; Woodrow Wilson and Franklin Delano Roosevelt went before Congress and, in stirring addresses, asked for a declaration of war, received it, then proceeded to deploy U.S. forces in battle.

But Harry Truman requested no congressional approval to send troops to Korea in 1950 – an act that James A. Lindsay, the senior vice-president and director of studies at the Council on Foreign Relations, said “dramatically expanded presidential power at the expense of Congress, which eagerly co-operated in the sacrifice of its constitutional prerogatives.”

No declarations of war have been made since the Second World War, and the use of military force in Vietnam, Iraq and Afghanistan came with broad, fuzzy votes of congressional authorization. In all three cases, presidents used those votes as the basis for extended engagements that had little if any meaningful review by Congress. The War Powers Act of 1973, which passed amid controversy over Vietnam and forces the president to alert Congress of military action within 48 hours and restricts the time those forces can be engaged, has proved to be balky and ineffective.

In recent years, presidents have stretched to defend their actions by employing years-old authorizations.

Indeed, when the younger Mr. Bush pushed in 2002 to get authorization to invade Iraq, administration officials suggested congressional approval wasn’t even needed; they argued that the 1991 vote on Capitol Hill authorizing his father to invade Iraq after Saddam Hussein seized Kuwait was all the authority they needed. Military engagements in Afghanistan during the administrations of Barack Obama and Donald Trump were conducted under the argument that the original authorization was sufficient.

This question has contemporary implications.

Earlier this month, at a Capitol Hill hearing, Secretary of State Antony Blinken raised the spectre of a resurgence of terrorist threats from al-Qaeda or ISIS-K in Afghanistan, telling senators, “We need to look to make sure we have all the authorities that we would need for any potential contingency.” He pledged a “re-looking at those authorizations or writing new ones.”

Back in 1999, with U.S. forces involved in Kosovo, the senior Democrat on the Senate Foreign Relations Committee complained that Bill Clinton had not followed through on his pledge to hold regular consultation sessions with congressional leaders on national security matters. “They worked but they weren’t sustained,” said senator Joe Biden of Delaware. “Along came Monica [Lewinsky] and everything became polarized.” It has remained so for 22 years.

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