The United States military finally pulled out of Afghanistan after a two-decade, unconstitutional, undeclared war. But that does not mean the forever “war on terror” has come to an end.

Even as the Biden administration was preparing for the Afghanistan withdrawal, it was ramping up bombing in the unconstitutional war in Somalia. And now it appears the U.S. is expanding the war to a new front – Congo.

According to AFP News, U.S. special forces arrived in the eastern part of DR Congo to join the battle against a “jihadist militia” enjoying “sanctuary” in the region’s nature parks. The Congolese government has been battling the rebel force known as the Allied Democratic Forces (ADF) for years. According to news reports, the ADF emerged as a rebel movement in neighboring Uganda in 1996. It has been active in the eastern DR Congo for nearly 30 years. Government sources say the group has killed thousands of civilians.

The U.S. justifies joining the battle because the ADF is allegedly a “branch of Daech” — or the Islamic State group (IS). The State Department added the group to its foreign terrorist organization (FTO) last March under the designation of ISIS-DRC.

But journalist Jared Thompson noted last month, “[State] did not provide extensive detail on the nature of the relationship between the ADF and the Islamic State.”

“A June 2021 report from the UN Group of Experts on the DRC, meanwhile, could not substantiate ‘direct support or command and control of the Islamic State in Iraq and the Levant’ with respect to the ADF.” columnist Daniel Larison raises an important question.

“There is no question that it is a brutal group that has killed many civilians, like many other armed groups that have operated in eastern Congo over the last twenty-plus years, but why are any U.S. forces involved in fighting them?”

As Larison points out, there is no pretense that this has anything to do with American security.

“U.S. troops are being sent on a mission that Congress never approved to fight in a country against a group that cannot possibly threaten the United States as a favor to a government that we are not obliged to defend.”

Larison also touches on another important point. This latest military adventure is unconstitutional. It’s unclear whether President Joe Biden signed off on this mission, or if he’s allowing the generals to make unilateral decisions. Regardless, Congress has not declared war on the Congo and therefore the U.S. military has no legal authority to conduct combat operations there. As George Washington noted, “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

Instead of a declaration of war, Biden, along with Bush, Obama, and Trump before him, relies on the authorization to use military force (AUMF) passed by Congress in the wake of 9/11 to justify military action across the globe. But this stretches the president’s constitutional authority far beyond the breaking point.

In practice, these resolutions authorize the president to decide if and when he wants to take military action. The AUMF passed after 9/11 to authorize the invasion of Afghanistan to go after the terrorists responsible for 9/11 remains in effect today. Bush, Obama, Trump and Biden have used it to justify their independent decisions to take military action across the globe, including Somalia and now Congo. This is why the government has to make a desperate attempt to tie the Congolese rebels to ISIS.

The fact is modern congressional AUMFs simply don’t pass constitutional muster.

No constitutional provision authorizes Congress to transfer its delegated powers to another party, including the president. In fact, doing so violates basic legal rules of construction. In contract law, when a principal (the people) delegates power to an agent (the federal government), the agent cannot transfer its delegated power to another party without specific direction within the contract. No such authorization exists in the Constitution. So, Congress can’t legally give the president a blank slate to make decisions about war at his own discretion. Congress must make that call and make it specifically before the initiation of military action.

Congress has never authorized military action in Congo. It is therefore another in a long line of illegal, unconstitutional U.S. wars.

Mike Maharrey

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