01:32 - Source: CNN
Pentagon details deadly ambush in Niger

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Jimmy Gurulé says Congress hasn't given President Trump the authority to use US troops to fight Boko Haram in Niger

He notes Congress has failed to approve a new authorization of force while the White House relies on a 16-year-old one

Editor’s Note: Jimmy Gurulé is a law professor at Notre Dame Law School, where he teaches national security law. He is the former undersecretary (enforcement), at the US Treasury Department, responsible for preventing the financing of terrorism. The opinions expressed in this commentary are his own.

CNN  — 

The tragedy in Niger involving the killing of four American soldiers by ISIS fighters raises several important legal questions.

When questioned by the media, several leading senators, including Sen. Lindsey Graham, R-South Carolina, and Senate Minority Leader Chuck Schumer, D-New York, stated they were not aware that over 800 American troops were stationed in Niger.

Jimmy Gurulé

Yet the Pentagon maintains it has regularly informed Congress of the deployment and movement of American troops conducting counterterrorism actions in Niger and other African countries.

The critical question, however, is not what Congress knew and when it knew it. Instead, it is this: Did Congress provide “specific authorization” for President Trump to introduce American armed forces into hostilities in Niger? If not, the deployment of American soldiers in Niger is unlawful in violation of the War Powers Resolution, known as WPR, and an abuse of the President’s executive powers under the Constitution.

The purpose of the WPR is “to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities. …”

Clearly, our nation’s founders did not want to place the solemn responsibility of deploying American soldiers into foreign hostile situations in the hands of the President alone, or any other single individual. The WPR is intended to prevent the President from unilaterally placing US soldiers in harm’s way.

Under the WPR, in the absence of a declaration of war, in any case in which American armed forces are introduced into a conflict, within 48 hours the President is required to submit a report to Congress setting forth the circumstances necessitating the placement of American soldiers in foreign hostilities, the constitutional and legislative authority for such deployment, and the estimated scope and duration of US military involvement in such situations.

Sixty days after the President submits a report to Congress, the President is required to terminate the use of such armed forces unless Congress provides “specific authorization” for the continued use of such military force. Moreover, the funding of the Department of Defense by Congress in any appropriations act does not constitute “specific authority” under the WPR. Further, under the statute, the authority to introduce military forces into hostilities may not be inferred from any other provision of law, unless it specifically authorizes the use of US Armed Forces into the hostilities at issue.

Congress has not enacted specific legislation authorizing the deployment of American soldiers in Niger to conduct military operations against ISIS, Boko Haram or associated terrorist organizations. Neither President Trump nor members of Congress have claimed otherwise. In fact, the President has remained remarkably silent on the subject.

The requirement that Congress provide specific legislative authorization for the introduction of American troops in Niger severely undercuts any claim by the Trump administration that the 2001 Authorization for the Use of Military Force, or AUMF, constitutes the requisite authority. The 16-year-old AUMF authorizes the President to use all “necessary and appropriate” force against members of al Qaeda, and affiliated individuals, entities, and terrorist organizations responsible for the 9/11 terrorist attacks.

Clearly, the AUMF does not provide “specific authority” to place American soldiers in Niger to engage in military actions against ISIS fighters. The deployment of American troops in Niger is therefore unlawful and unconstitutional.

However, the blame should not fall entirely on the Trump administration. Congress has been derelict in exercising its constitutional duties. Under Article I of the Constitution, Congress has the power to declare war, not the President.

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    The 2001 AUMF is a de facto declaration of war against al Qaeda and its adherents. As it largely was with President Obama, the AUMF has been relied on by President Trump to justify the use of military force against ISIS and related terrorist groups in Syria, Iraq, Afghanistan, Pakistan, Libya, Somalia, Yemen and elsewhere. The 2001 AUMF is tenuous legal authority for the use of military force in these situations. Congress has quietly acquiesced.

    The tragic incident in Niger should serve as a wake-up call for Congress to ensure that President Trump is complying with the WPR and not unilaterally placing US soldiers in harm’s way. Congress should adopt a new AUMF directed at ISIS and related terrorist organizations.

    In the absence of such specific authorization, the President is acting unlawfully and unconstitutionally by deploying American soldiers in Niger and other countries around the world. Such lawless action should not be condoned by Congress or the American people.