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The Illegality of Trump’s Afghanistan War

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When President Trump attributed his flip-flop on Afghanistan to his team of military generals , who informed him that a withdrawal from America’s 16-year war would leave a “haven” for terrorists, I couldn’t help but think of former presidential candidate George Romney during the Vietnam War. After opposing the war, Romney traveled to Vietnam and returned with the same flip-flop mindset that Trump has experienced. Like Trump, Romney blamed it on the generals, who, he said, had “brainwashed” him into supporting the war. Romney’s brainwashing, however, wasn’t permanent, as Romney later returned to an antiwar position. So maybe there’s hope that the same thing will happen to Trump.

There is one important point, however, that we must continue to emphasize, even though it is continuously ignored by the Washington establishment: the illegality of Trump’s War (and Bush’s and Obama’s Wars before him), given that there is no congressional declaration of war.

When the U.S. Constitution called the federal government into existence, it became the higher law that controls the actions of federal officials. Just as we are expected to comply with their laws, they are expected to comply with our law.

Under the Constitution, the president is legally barred from waging war without a congressional declaration of war. Whether the nation goes to war is the responsibility of Congress, not the president. If Congress declares war, then it is the job of the president to wage it. But under the law — the law of the Constitution — if Congress does not declare war, the president is barred from waging war.

That makes Trump’s War in Afghanistan illegal under our form of government.

Yes, I know, U.S. presidents have ignored that provision of the U.S. Constitution ever since the U.S. government was converted into a national-security state after World War II. The Korean War. The Vietnam War. The war on Cuba. The wars on Panama and Grenada. The war on Iraq. The war on Afghanistan. The war on Syria. The war on Libya. The list of illegal U.S. wars goes on and on.

Nonetheless, the point remains: All of these wars were — and are — illegal under our form of government. Trump is just the latest in a line of presidents who is waging illegal wars.

Unfortunately, Americans can’t look to the federal courts, whose job is to uphold the Constitution, to declare the Afghanistan War unconstitutional. Long ago, the Supreme Court and the lower federal courts made it clear that when it comes to any matter relating to “national security,” the courts would not interfere with whatever the president and the national-security establishment (i.e., the Pentagon and the CIA) were doing, including waging illegal wars.

Don’t look to Congress to impeach the president for waging a war in violation of the Constitution. They want the same power when their candidate reaches the White House and, therefore, are not about to hold the president accountable for waging an illegal war. They are also too scared of the Pentagon and the CIA to take them on.

That leaves the American people. How long will Americans tolerate and permit their elected officials to continue violating the law of the land — the law that the people have imposed on federal officials — especially when the illegal wars involve continued death, destruction, injuries, maiming, torture, financial debauchery, and loss of liberty and privacy here at home?

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.