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Comment by margalabargala | Hacker News Reader

> The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.

What part of the Constitution are we ignoring?

According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.

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> The Constitution does not say that war must be declared for the armed forces to operate.

It does. Armed forces killing people is a state of war. If not, it's policing then it's under the judiciary authority, not the president.

Congress has the power to declare war. But Congress has also passed the War Powers Act which states the President can use the military for short periods of time. Are you claiming the War Powers Act is unconstitutional?

The War Powers Act is exactly the type of law that the Supreme Court has been going after. Bills that give power that was meant for one branch of government to a different branch, or abrogating that power.

The problem with SCOTUS going after these laws is that they are a matter of practicality. If an attack is launched on the USA, the military and the President aren't going to sit back and let it happen, they will act.

When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.

The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.

And yet, now here we are in the 21st century, where it feels like we're on the opposite side of the time delay problem. Instead of the War Powers Act, what if we allowed congresspeople to use PEKs to vote by proxy in the case of an emergency (definition needed)? Surely that would be better than creating a all-but-in-title king out of the executive branch as concerns conflict?

The security issues around that are similar to the issues with electronic voting and have been covered exhaustively. You're creating the absolutely juiciest target for hacks and espionage. I would say they could meet by remote teleconference but that has issues now too with deep fakes getting better and better.

On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.

Banning bills that transfer powers around government would also hamstring regulatory agencies, wouldn't it? While there are some other rules in place, agencies making law is fundamentally a transfer of power from the Legislative branch to the Executive.

Congress, the presidency, and the judiciary can’t pass to each other their powers. It’s indeed unconstitutional.

The War Powers Act is questionable. The US never declared war in Vietnam. The president simply sent troops to Vietnam knowing that they would end up fighting. But the president said he had that authority as commander-in-chief. The War Powers Act was supposed to address that.

If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.

The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.

> > The Constitution does not say that war must be declared for the armed forces to operate.

> It does.

Since the Constitution is a publicly available document, would you please point me to the spot where it says that? Thanks.

There is a certain amount of deliberate ambiguity to Article I Section 8 -- take a look at e.g. https://avalon.law.yale.edu/18th_century/debates_817.asp and you can see that the wording "The Congress shall have power to [...] declare war" was revised from "make war" in the earlier drafts. Madison clearly felt that Congressional authorization was on some level required to conduct a war, but that the Executive should be free to act quickly in self-defense, e.g. to repel an invasion.

I don’t think we covered that in my history classes. Congress’s website about the constitution agrees with you and adds additional details ( https://constitution.congress.gov/browse/essay/artI-S8-C11-3... ).

Like a lot of things, this seems to fall under the idea of "convention" and not law. This has been an ongoing problem in recent times. Practically speaking, Congress is a rubber stamp for matters of war.

Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.

"Withhold funding from the military" it's actually better (or worse) than that. The US doesn't have a standing army technically speaking, it cannot constitutionally. The post war military has been continuously reauthorized twice yearly since the end of world war 2. Congress can refuse to reauthorize continuation of it and the treasury can't do anything about it.

Legally though the power of the purse also lies with Congress. If we're throwing in extra constitutional actions all bets are off though because we're no longer bound by the rules of what is allowed and it's down to the old power of might making right.

> Armed forces killing people is a state of war.

Real life is rarely this black and white.

Which is why we invented laws and legal systems to codify such things.

Did you commit a crime, yes/no? Let's bring it to trial.

The circumstances are messy in all real world instances, but the outcome is binary.

Refusing to even put a president on trial is more black and white, because it's a clear "no, not illegal" without even discussion.

Courts don't even decide yes/no. Maybe is an outcome. We don't know is also an outcome.

Doubly so since almost everyone stopped bothering to declare war after WW2.

Art. 1 sec. 8 does not say that and no other part of the U.S. constitution mentions war.

> Armed forces killing people is a state of war.

There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.

https://en.wikipedia.org/wiki/List_of_wars_involving_the_Uni...

https://en.wikipedia.org/wiki/Timeline_of_United_States_mili...

Not quite. This is a great survey of the many issues & opinions on the topic that have been at play since the beginning of the Constitution: https://constitution.congress.gov/browse/essay/artI-S8-C11-3....

The current standing precedent/law is the President only has to notify Congress within 48 hours of an action and must remove troops within 60 days if Congress has not approved an extension. Formal declarations of war are separate from short military actions legally. It's an extremely messy part of constitutional law precisely because of the split between the power to do and the power to authorize.

>If not, it's policing then it's under the judiciary authority, not the president.

Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.

Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.

Policing, or law enforcement, at the Federal level is also a part of the executive branch and under control of the President.

Huh? Federal law enforcement falls under the executive branch, not judicial. Have you even read the Constitution?

Federal (and state, and local) law enforcement are not empowered to kill. Their job is to bring defendants to trial, where the judicial system determines innocence or guilt and then determines the sentence.

If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.

Qualified immunity is used as a defense in a lot of these cases.

Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.

Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.

That's muddling nouns a bit.

Law enforcement individuals have extremely limited authority to kill people, exclusively(?) based on self-defense.

The law enforcement system has the right to authorize the killing of people but is subject to judicial review.

Ergo, if a law enforcement individual breaks guidelines and kills someone, they're charged.

If a law enforcement individual follows guidelines and kills someone, then the system is charged. (E.g. state/federal lawsuits, consent decrees, etc)

> What part of the Constitution are we ignoring?

There are a number of amendments that could be pretty reasonable argued to give citizens the right not to get killed by drone strikes.

Citizens, sure. That's a much weaker claim than what the parent said, which is "The President should not be able to conduct drone strikes without an act of Congress".

Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.

Killed or targeted? There's a huge difference between ordering a drone strike on said citizens and ordering strike on legitimate military target that said citizens just happen to be in a vicinity of.

In the case in question, the former. https://en.wikipedia.org/wiki/Anwar_al-Awlaki

Is there? One is actively killing citizens the other is still a reckless disregard for human life in general.

Is there a difference? Legally? Both would be official acts, right?

Why are actions being taken against military targets outside of a declaration of war?

Can you give an example of a time when a "legitimate military target" needed to be killed so immediately that a unilateral presidential decision that also killed nearby citizens was warranted? My presumption is that there are very few circumstances where the threat of a military target is so immediate that killing nearby innocent civilians is justified over waiting to try to find a better time to attack the target. If anything, immediate threats that require action are generally threats to the nearby innocent civilians themselves, which would make such decisive action not particularly useful; I don't think anyone would suggest something like blowing up a bank where people are being held hostage, which seems like the closest hypothetical I can think of.

One might question how that standard applies to what Israel is doing in Gaza.

I would argue that the US law would not allow the president to order strikes like those that have occurred in Gaza on US citizens, but of course IANAL. I don't have any knowledge of what Israeli law allows or doesn't allow though.

It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.

If the US continues to ship them large amounts of foreign aid, aren’t we at least a little bit complicit?

Enemies are not static they can react to our policies. If our policies are never to kill anyone who is near a civilian, enemies would just always be near civilians.

> What part of the Constitution are we ignoring?

Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.

Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.

The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.

https://constitution.congress.gov/browse/article-1/section-8...

> The Constitution does not say that war must be declared for the armed forces to operate.

Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.

The president now has legal authority to do whatever he wants.

At the same time, the president's agencies no longer have the authority to do whatever they want.

So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.

The Constitution forbade the US even to have a standing army. A standing navy was instituted, however.

The Constitution does not forbid a standing army, it merely mandates that funding be renewed every two years. This is functionally a standing army.

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