OPINION — “The question before the body is, can the Congress stop a military conflict declared by the Commander-in- Chief because we don’t agree with the decision, and without our [Congress] approval it must end? The answer, unequivocally, to me is no. Under the Constitution, the authority to be Commander-in-Chief resides exclusively with the President. The power to declare war is exclusive to the Congress. Now, what could the Congress do constitutionally if they disagree with a military action that is not a declaration of war? We could cut off funding.”

That was Sen. Lindsey Graham (R-S.C.) speaking on the Senate floor on the afternoon of November 6, when debate was to begin on S.J. Res. 90, legislation that was “to direct the President to terminate the use of U.S. Armed Forces for hostilities within or against Venezuela, unless explicitly authorized by a declaration of war or specific authorization for use of military force.”

Graham’s remark that Congress could cut off funds to halt a President ordered foreign military action took me back 56 years to December 1969, when I was working for Sen. J.W. Fulbright (D-Ark.), then chairman of the Senate Foreign Relations Committee. I had in late 1969 been to Laos where the Nixon administration was carrying out a secret bombing campaign in an attempt to limit weapons going from North Vietnam to pro-Communists in South Vietnam.

To halt the at-the-time classified Laos bombing program, Fulbright introduced an amendment to the fiscal 1970 Defense Appropriations Bill that prohibited the use of U.S. funds to send American ground combat troops into Laos or Thailand. To get his amendment debated and passed, Fulbright had to arrange for a closed-session of the Senate.

That closed session was held on December 16, 1969, with all 100 Senators present, a handful of staff – including me – but no one in the public galleries and no reporters in the press gallery. After a 90-minute debate, the amendment passed. The House accepted the amendment in conference and it was signed into law by President Nixon on December 29, 1969.

Fulbright’s purpose was to assert Congress’ Constitutional role when it came to a prospective military operation amid his concern that the Nixon administration was expanding the Vietnam War into neighboring countries without consulting Congress.

I describe that long-past activity to explain my continuing apprehension over today’s possible Trump administration military action against Venezuela. The Trump administration has already introduced deadly military operations against alleged narco-traffickers working from a secret list of drug cartels using a classified Justice Department Office of Legal Counsel opinion which claims the drugs are to kill Americans and finance arms to terrorists who will destabilize the U.S. and other Western Hemisphere countries.

Last Thursday and Friday, President Trump met in the Oval Office to discuss a host of options for Venezuela with Vice President JD Vance, Defense Secretary Pete Hegseth, Joint Chiefs Chairman Gen. Dan Caine, Secretary of State Marco Rubio and Deputy Chief of Staff Stephen Miller.

Friday night, in remarks to reporters aboard Air Force One as he traveled for the weekend to his Mar-a-Lago estate, the President said he had “sort of made up my mind” about how he will proceed with the possibility of military action in Venezuela. On Sunday, flying home, Trump told reporters the U.S. “may be having some discussions with [Venezuelan President Nicolas] Maduro,” adding that “they [the Venezuelans] would like to talk.”

Although he swings back and forth, it appears clear from President Trump’s point of view, he need not consult with Congress should he decide on any military action that targets the Venezuelan mainland. As Sen. Graham pointed out, “We have only declared war five times in 250 years, and we have had hundreds of military operations -- some authorized and some not.”

Need a daily dose of reality on national and global security issues? Subscriber to The Cipher Brief’s Nightcap newsletter, delivering expert insights on today’s events – right to your inbox. Sign up for free today.

Opening the Senate debate on November 6, Sen. Tim Kaine (D-Va.), a key sponsor of the congressional resolution, pointed out, “On October 31, public reporting shows that many Trump administration officials have told the press that a secret list of targets in Venezuela has been drawn up. All of this, together with the increased pace of strikes in the Caribbean and Pacific [21 attacks on alleged narco-trafficking boats, 83 individuals killed], suggests that we are on the verge of something that should not happen without a debate and vote in Congress before the American people.”

On November 6, after a relatively short debate, the Senate resolution to block the use of U.S. armed forces against Venezuela was defeated by a 49-to-51 vote.

But during that debate some important points were made, and they need some public exposure.

For example, Sen. Tammy Duckworth (D-Ill.), a military veteran herself, said, “Listen, if the Trump administration actually believes there is an ongoing credible threat of armed conflict, then they must bring their case to Congress and give the American people a say through their elected representatives. They must respect our service members enough to prove why war is worth turning more moms and dads into Gold Star parents. And they must testify about what the end state of these military operations would actually look like.”

Sen. Adam Schiff (D-Calif.) said, “Maduro is a murderous dictator. He is an illegitimate leader in having overturned the last election by the use of military force. He is a bad actor. But I do not believe the American people want to go to war to topple this regime in the hopes that something better might follow… Let them [the Trump administration] seek an authorization to use force to get rid of Maduro. But let us not abdicate our responsibility. Let us vote to say no to war without our approval. We don’t have to wait, nor should we wait for that war to begin before we vote.”

Sen. Rand Paul (R-Ky.) pointed out, “Of course, we have the capability of overthrowing the Maduro regime, just like we had the power to overthrow Saddam Hussein and Muammar Qadhafi. But what comes next? Is anyone thinking about the potential blowback that such a campaign could entail? Overthrowing the Maduro regime risks creating more regional instability, not less. The breakdown of state authority may create a power vacuum that the very drug cartels the administration is ostensibly trying to destroy could exploit.”

The Cipher Brief brings expert-level context to national and global security stories. It’s never been more important to understand what’s happening in the world. Upgrade your access to exclusive content by becoming a subscriber.

“You cannot bomb your way out of a drug crisis,” said Sen. Jack Reed (D-R.I.), ranking member on the Senate Armed Services Committee. “The demand that motivates drug trafficking is not found in the Caribbean. It is located in communities across America where people are suffering from addiction, where economic opportunity has dried up, where the social fabric has frayed. Military strikes do nothing to address those root causes. Boats have been blown out of the water in videos released by the administration. But has the flow of fentanyl into America decreased? Has a single trafficking network been dismantled? The administration hasn’t provided any evidence that these strikes are achieving anything beyond the destruction they document on camera. This is not a strategy. This is violence without a strategic objective.”

Sen. Reed also pointed out how the Trump administration is expanding its war powers. “The White House is apparently now arguing that these strikes [on alleged narco-boats] don’t constitute ‘hostilities’ under the War Powers Act because American service members aren’t directly in harm’s way while operating standoff weapons and drones. This is ridiculous…They are very much in harm’s way, and to say that this operation is so safe that it doesn’t qualify as ‘hostilities’ is embarrassing…This new interpretation creates a dangerous precedent. If standoff weapons exempt military operations from congressional oversight, we have effectively granted the Executive Branch unlimited authority to wage war anywhere in the world so long as American forces can strike from a distance.”

Taking a different approach, Sen. Chris Van Hollen (D-Md.) pointed out an irony in Trump’s anti-drug argument. Van Hollen said, “I will tell you what you don’t do. You don’t submit a budget to the U.S. Congress that cuts the funding for the Drug Enforcement Agency and cuts funding for the task forces we developed to go after major organized crime syndicates involved in the drug business.” He added, “I happen to be the ranking member of the Appropriations Committee that oversees the Justice Department. And all my colleagues have to do is take a look at the request from the President of the United States when it comes to resources for fighting drugs coming to the United States. They cut them.”

Raising an additional problem, Sen. Andy Kim (D-N.J.) said, “Letting Donald Trump ignore the law abroad makes him think he has a free pass to do it right here at home. Donald Trump thinks if he can do this in the Caribbean, he can do it on the streets of Chicago. He could use the military for his own political retribution and consolidation of power in and outside our borders. After all, he [Trump] said in his own words: ‘We’re under invasion from within, no different than a foreign enemy but more difficult in many ways because they don’t wear uniforms.’ That is what the President said. We cannot be complacent as he sends troops into our cities as a tool of intimidation against his political enemies.”

While we await President Trump’s decision on what comes next, let me close with another ironic situation, created last Wednesday by Secretary of Homeland Security Kristi Noem.

Giving the keynote address at the Potomac Officers Club’s 2025 Homeland Security Summit, Noem celebrated recent successes in the counter-drug mission. She said that since January, the Coast Guard has stopped 91 metric tons of drugs, confiscated 1,067 weapons and seized more than $3.2 million in cash from terrorist cartels, thanks primarily due to Operation Pacific Viper, which Noem said is strategically designed to seize historic amounts of drugs from smugglers in the eastern Pacific. “Viper has saved millions of lives of individuals and Americans by stopping those drugs before they ever got to the U.S.,” Noem said.

Operation Pacific Viper, according to a Coast Guard press release, also resulted in the arrest of 86 alleged narco-traffickers as of October 15. A needed reminder: Viper was an interdiction program where narco-traffickers were intercepted, arrested and drugs seized – not boats blown up and people killed.

The Cipher Brief is committed to publishing a range of perspectives on national security issues submitted by deeply experienced national security professionals.

Opinions expressed are those of the author and do not represent the views or opinions of The Cipher Brief.

Have a perspective to share based on your experience in the national security field? Send it to Editor@thecipherbrief.com for publication consideration.

Read more expert-driven national security insights, perspective and analysis in The Cipher Brief

OPINION / EXPERT PERSPECTiVE — According to reports, the Trump administration informed Congress that the ongoing hostilities against alleged narco-terrorist groups does not fall within the scope of the War Powers Resolution (WPR). As a result, the administration does not believe the President’s authority to continue to wage this military campaign is in any way constrained by the law.

Trump is building on an interpretation of the law first advanced by the Obama administration to avoid WPR compliance in relation to the U.S. involvement in the NATO campaign against Libya in 2011. This interpretation posits that the WPR is inapplicable to hostilities that fall below the level of large-scale ‘war’ and involve minimal risk of U.S. casualties. Yet ironically, President Trump’s assertion of inherent constitutional authority to start and continue this military campaign is exactly what the law was intended to cover.

Enacted into law in 1973 over President Nixon’s veto, the War Powers Resolution was motivated by congressional determination to prevent future presidents dragging the nation into a war incrementally. The context was obvious: Vietnam. For a super-majority of legislators, that conflict began and slowly expanded under the same premise: presidential assertions of inherent constitutional authority to commit small numbers of U.S. armed forces to low-level operations with limited risk: first as advisors, then to engage in limited direct action, then through ‘limited risk’ air operations. What evolved was an escalation that most of these legislators believed was inconsistent with both presidential assurances and the Gulf of Tonkin Resolution – the statutory use of force authorization Congress enacted in 1965 to empower the President to respond to subsequent North Vietnamese attacks on U.S. assets. From 1964 to 1967, the number of U.S. armed forces in Vietnam had escalated from approximately 25,000 to almost 500,000.

Nothing in the Gulf of Tonkin Resolution limited that escalation, and over the years Congress continued to provide presidents with the money and manpower to wage the war. Yet it was a different lesson from that experience that provided the true motivation for the WPR: the undeniable reality that it is far more difficult for Congress to force an end to a war than it is to prevent (or limit it) from inception.

Voting to cut off funding for an ongoing conflict is certainly a tool in the congressional arsenal to check presidential assertions of war power, but in the context of ongoing hostilities it is unrealistic to expect it will be useful. To begin with, restricting existing appropriations would require a veto-proof super-majority in both the House and Senate. But even mustering a simple majority to deny a continuation of appropriations for ongoing hostilities is politically unrealistic as it will be perceived as ‘abandoning’ or ‘betraying’ troops in the field.

The conflict in Southeast Asia proved this. Even after Congress revoked the Gulf of Tonkin Resolution, it continued to provide fiscal and human resources in support of hostilities. And when service-members asked federal courts to rule that the President lacked constitutional authority to order them to war, judges consistently ruled that this continued support demonstrated joint action by the President and Congress, satisfying the Constitution’s war powers equation. Even when Congress enacted a Bill to cut off all funding for the bombing campaign in support of the Cambodian military’s struggle against the Khmer Rouge, President Nixon’s veto threat and the accordant compromise that extended that funding was enough to lead a federal appeals court to reach the same conclusion. In short, unless Congress could muster a sufficient majority to override a presidential veto and enact law prohibiting continued operations, a president’s unilateral decision to commit the nation to a conflict would effectively put Congress in a straitjacket.

The Cipher Brief brings expert-level context to national and global security stories. It’s never been more important to understand what’s happening in the world. Upgrade your access to exclusive content by becoming a subscriber.

It was against this background the WPR was enacted. At its foundation is the assertion that the President’s authority to commit “United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances” requires either express statutory authorization (a declaration of war or authorization for the use of military force) or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” As a result, the law includes several essential provisions:

· The President must report any such commitment to congressional leadership within 48 hours.

· Once reported (or when such a report was required), the President has 60 days to persuade Congress to support the operation by enacting express statutory authority.

· If Congress fails to enact such an authorization, the operation must terminate (unless Congress grants the President a 30-day extension to bring the operation to an end).

· Congress may order termination of an operation at any time by concurrent resolution (a majority vote by the Senate and the House with no opportunity for a presidential veto).

· Congressional authorization may not be inferred from any appropriation or other law unless it expressly authorizes the operation.

· Nothing in the WPR – to include the 60-day grace period provision – may be interpreted as a grant of authority to the President to commit U.S. forces to hostilities or imminent hostilities.

Are you Subscribed to The Cipher Brief’s Digital Channel on YouTube? There is no better place to get clear perspectives from deeply experienced national security experts.

From inception, presidents (and many experts) have criticized the WPR as self-contradictory, most notably because it also includes a provision that indicates nothing in the law “is intended to alter the constitutional authority of the Congress or of the President…” These critics argue the law does just that by unconstitutionally intruding upon the inherent war powers vested in the President and the prerogative of Congress to indicate support for presidential war powers initiatives by implication. And there are other defects. For example, the law omitted the well-established inherent authority of presidents to use military force to rescue U.S. nationals abroad (the Senate version included such a provision but it was removed during conference negotiations). And the provision allowing Congress to order termination of an ongoing military operation by concurrent resolution arguably runs afoul of a subsequent Supreme Court decision invalidating what is known as a legislative veto – use of a concurrent resolution to revoke a delegation of authority to the President enacted by law (although there is a question of whether the WPR concurrent resolution provision falls into that category as it is not withdrawing any prior statutory delegation of authority).

And then there is the so-called 60-day clock, perhaps the most misunderstood and at the same time perplexing provision of the law: misunderstood because it is often asserted as a statutory grant of authority to the President to conduct any military operation for up to 60 days (which contradicts Section 8 of the WPR); perplexing because if it is not a grant of authority, then what exactly did it mean?

The answer to the second question is ironically highlighted by the current counter-narcotic military campaign. Because it may not be interpreted as an express grant of constitutional authority to engage in hostilities (or situations of imminent hostilities), it is best understood as a failsafe – an acknowledgment that presidents will likely initiate combat operations on the belief they are acting pursuant to constitutional authority. If they do so, however, the law requires such an assertion of authority be validated by express congressional endorsement within 60 days. If a President is unable to secure such validation, congressional inaction functions as opposition, requiring termination of the operation.

There are, of course, problems with this equation. First, from a president’s perspective, if he is acting pursuant to valid constitutional authority on day 59, how does it evaporate on day 61? And if it was valid on day 59, a mere statute cannot dictate its invalidity. Second, there is something troubling about allowing Congress to require a president to terminate a military operation by inaction. Finally, as noted above, this provision ignores the frequently utilized congressional practice of expressing its support for a presidentially initiated military campaign by implication – primarily through funding and providing necessary resources (including manpower). Examples include not only the Korean War, but also the two post-WPR campaigns that exceeded 60 days without express statutory authorization: the Serbian air campaign in 1999, and the Libyan air campaign in 2011.

Nonetheless, the process of at least seeking congressional endorsement of a military campaign that extends beyond 60 days acknowledges a critically important premise: that the Constitution diffuses war powers between Congress and the President. While the requirement for express statutory authorization may have been constitutionally overbroad from inception of the WPR, seeking some manifestation of congressional support preserves this important war powers balance between the two political branches. Perhaps more importantly, it acknowledges the Congress’ constitutional authority to impose limits on – or even prohibit – commitment of the nation to hostilities.

Instead of acknowledging this shared constitutional role in authorizing war, the Trump administration is staking a claim of unilateral presidential authority. Because we are told there is little risk of U.S. casualties, Congress ostensibly has no role, and the WPR is inapplicable. But it is precisely because, “From small things, big things someday come” that Congress enacted the WPR. Acknowledging a congressional role now – while perhaps not necessarily express authorization – will advance the necessity that the administration make its case for the necessity, morality, and legality of this campaign before the representatives of We the People; give Congress the opportunity to exercise its constitutional role in war powers; and most importantly protect the nation from being dragged, incrementally, into a war Congress may find near impossible to get us out of.

This is a genuine War Powers Resolution moment.

Read more expert-driven national security insights, perspective and analysis in The Cipher Brief because National Security is Everyone’s Business.