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Report: the 2002 authorization to use mlitary force (AUMF) in Iraq has long since ceased to provide any legal justification for ongoing U.S. troop presence and bombing campaigns in that country

For the second time in the five months since he was inaugurated, President Joe Biden on Sunday ordered a U.S. bombing raid on Syria, and for the first time, he also bombed Iraq. The rationale offered was the same as Biden’s first air attack in February: the U.S., in the words of Pentagon spokesman John Kirby, “conducted defensive precision airstrikes against facilities used by Iran-backed militia groups in the Iraq-Syria border region.” He added that “the United States acted pursuant to its right of self-defense.”

US President Joe Biden salutes along with Secretary of Defense Lloyd Austin before delivering an address at the 153rd National Memorial Day Observance at Arlington National Cemetery on Memorial Day in Arlington, Virginia on May 31, 2021. (Photo by MANDEL NGAN/AFP via Getty Images)

Embedded in this formulaic Pentagon statement is so much propaganda and so many euphemisms that, by itself, it reveals the fraudulent nature of what was done. To begin with, how can U.S. airstrikes carried out in Iraq and Syria be “defensive” in nature? How can they be an act of “self-defense”? Nobody suggests that the targets of the bombing campaign have the intent or the capability to strike the U.S. “homeland” itself. Neither Syria nor Iraq is a U.S. colony or American property, nor does the U.S. have any legal right to be fighting wars in either country, rendering the claim that its airstrikes were “defensive” and an “act of self-defense” to be inherently deceitful.

The Pentagon’s description of the people bombed by the U.S. — “Iran-backed militias groups” — is intended to obscure the reality. Biden did not bomb Iran or order Iranians to be bombed or killed. The targets of U.S. aggression were Iraqis in their own country, and Syrians in their own country. Only the U.S. war machine and its subservient media could possibly take seriously the Biden administration’s claim that the bombs they dropped on people in their own countries were “defensive” in nature. Invocation of Iran has no purpose other than to stimulate the emotional opposition to the government of that country among many Americans in the hope that visceral dislike of Iranian leaders will override the rational faculties that would immediately recognize the deceit and illegality embedded in the Pentagon’s arguments.

Beyond the propagandistic justification is the question of legality, though even to call it a question dignifies it beyond what it merits. There is no conceivable Congressional authorization — none, zero — to Biden’s dropping of bombs in Syria. Obama’s deployment of CIA operatives to Syria and years of the use of force to overthrow Syrian leader Bashar al-Assad never had any Congressional approval of any kind, nor did Trump’s bombing of Assad’s forces (urged by Hillary Clintonwho wanted more), nor does Biden’s bombing campaign in Syria now. It was and is purely lawless, illegal. And the same is true of bombing Iraq. The 2002 Authorization to Use Military Force (AUMF) in Iraq, which the House just last week voted to repeal, has long since ceased to provide any legal justification for ongoing U.S. troop presence and bombing campaigns in that country.

In its statement justifying the bombing raids, Biden’s Pentagon barely even bothered to pretend any of this is legal. It did not cite either the 2002 AUMF for Iraq or the 2001 AUMF authorizing the use of force against those responsible for 9/11 (a category which, manifestly, did not include Iran, Iraq or Syria). Instead, harkening back to the days of John Yoo and Dick Cheney, the Biden Defense Department claimed that “as a matter of international law, the United States acted pursuant to its right of self-defense,” and casually asserted that “as a matter of domestic law, the President took this action pursuant to his Article II authority to protect U.S. personnel in Iraq.”

Those claims are nothing short of a joke. Nobody seriously believes that Joe Biden has congressional authority to bomb Syria and Iraq, nor to bomb “Iranian-backed” forces of any kind. As The Daily Beast‘s long-time War on Terror reporter Spencer Ackerman put it on Sunday night, discussions of legality at this point are “parody” because when it comes to the U.S.’s Endless Wars in the name of the War on Terror, “we passed Lawful behind many many years ago. Authorization citations are just pretexts written by lawyers who need to pantomime at lawfulness. The U.S. presence in Syria is blatantly illegal. Such things never stop the U.S.”

That is exactly right. The U.S. government is a lawless entity. It violates the law, including its own Constitution, whenever it wants. The requirement that no wars be fought absent congressional authority is not some ancillary bureaucratic annoyance but was completely central to the design of the country. Article I, Section 8 could not be clearer: “The Congress shall have Power . . . to declare war.” Two months after I began writing about politics — back in December, 2005 — I wrote a long article compiling the arguments in the Federalist Papers which insisted that permitting the president unchecked powers to wage war without the approval of the public — through their representatives in Congress — was uniquely dangerous for ushering in the kind of tyranny from which they had just liberated themselves, and another article in 2007 which did the same:

The Constitution — while making the President the top General in directing how citizen-approved wars are fought — ties the use of military force to the approval of the American citizenry in multiple ways, not only by prohibiting wars in the absence of a Congressional declaration (though it does impose that much-ignored requirement), but also by requiring Congressional approval every two years merely to have an army. In Federalist 26, this is what Alexander Hamilton said in explaining the rationale behind the latter requirement (emphasis in original):

The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.

Public opposition is the key check on the ill-advised use of military force. In Federalist 24, Hamilton explained that the requirement of constant democratic deliberation over the American military is “a great and real security against military establishments without evident necessity”. . . .

Finding a way to impose checks on the President’s war-making abilities was a key objective of the Founders. In Federalist 4, John Jay identified as a principal threat to the Republic the fact that insufficiently restrained leaders “will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

But as Ackerman says, even discussing legality at this point is meaningless, an empty gesture, a joke. It gives far too much credit to the U.S. ruling class, as it implies that they care at all about whether their posture of endless war is legal. They know that it is illegal and do not care at all. Many have forgotten that President Obama not only involved the U.S. in a devastating regime-change war in Libya without congressional approval, but so much worse, continued to do so even after the House of Representatives voted against providing him authorization to use force in Libya. Obama ignored the House vote and kept troops in Libya anyways as part of a NATO mission, claiming that NATO and U.N. authorization somehow entitled him to do this despite his own country’s Congress voting against it, reflecting overwhelming opposition among the citizenry. (The U.N. authorization — even if it could somehow supplant the U.S. Constitution — only allowed the use of force to protect civilians, not to overthrow the Libyan government, which quickly and predictably became the NATO mission, making it clearly illegal).

This is one reason I found the Trump-era discourse so suffocatingly dishonest and fraudulent. I began writing about politics in 2005 in order to document the systemic lawlessness that had become the fully bipartisan Bush/Cheney War on Terror. The executive power theories that were adopted — that the president has the right to do whatever he wants under Article II regardless of congressional laws or any other acts by courts or the citizenry, even including spying on American citizens without warrants — was the pure expression of authoritarianism and lawlessness. That lawlessness not only continued but escalated severely under the Obama administration, with the war in Libya, the claimed right to assassinate anyone in the world without due process, including U.S. citizens, and the CIA’s covert regime-change war in Syria.

Having to watch the Bush/Cheney and Obama/Biden operatives who ushered in this permanent state of illegality and lawless wars prance around during the Trump years as noble defenders of the sacred rule of law — all while being celebrated and profiting greatly — was nauseating in the best of times. American elites do not care about the rule of law or the Constitution. Ignoring it is how they empower themselves at the expense of the citizenry. That is why very few will care about the fact that Biden (indulging the fiction for a moment that it was he) ordered the bombings on two countries without the slightest whiff of legal authority to do so.

While it feels frivolous even to raise questions of legality — since so few in Washington care about such matters — the real overarching question is the simplest one. Why does the U.S. continue to have a military presence in Iraq and Syria? What conceivable benefits redound to American citizens from the massive expenditures required to keep U.S. troops stationed in these two countries, the risk of those troops’ lives, the endless acquisition of bombs and other weapons to fight there, and the obvious but severe dangers from triggering escalation with powerful militaries that — unlike the U.S. — actually have a vital interest in what takes place in their bordering countries?

While the ordinary American only suffers from all of this, there are definitely some sectors of U.S. society which benefit. The corporation that Biden’s Secretary of Defense Lloyd Austin left in order to run the Pentagon — Raytheon — needs ongoing troop deployment and permanent warfare for its profitability. According to The New York Timesit was “Defense Secretary Lloyd J. Austin III and Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, [who] briefed Mr. Biden on attack options early last week,” after which “Mr. Biden approved striking the three targets.” So Gen. Austin’s colleagues on the Raytheon Board of Directors, as well as his comrades on the Boards of General Dynamics and Boeing, are surely thrilled with this attack.

Indeed, anyone invested in endless war in the Middle East — including the entire U.S. intelligence community and the weapons industry which feeds off of it — must be thrilled by all of this. Each time the U.S. “retaliates” against Iran or Iraqi militias or Syrian fighters, it causes them to “retaliate” back, which in turn is cited as the reason the U.S. can never leave but must instead keep retaliating, ensuring this cycle never ends. It also creates a never-ending supply of angry people in that region who hate the U.S. for bringing death and destruction to their countries with bombs that never stop falling and therefore want to strike back: what we are all supposed to call “terrorism.” That is what endless war means: a war that is designed never to terminate, one that is as far removed as possible from actual matters of self-defense and manufactures its own internal rationale to continue it.

But what is beyond doubt is that this illegal, endless war in the Middle East does nothing but harm American citizens. As they are told that they cannot enjoy a sustainable let alone quality standard of living without working two or three dreary hourly-wage, benefits-free jobs for corporate giants, and while more Americans than ever continue to live at home and remain financially unable to start families, the U.S. continues to spend more on its military than the next thirteen countries combined. This has continued for close to two full decades now because the establishment wings of both parties support it. Neither of them believes in the Constitution or the rule of law, nor do they care in the slightest about the interests of anyone other than the large corporate sectors that fund the establishment wings of both parties. The bombs that fell on Syria and Iraq last night were for them and them alone.

Article: Biden’s lawless bombing of Iraq and Syria only serves the weapons industry funding both parties

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