More war?

A new proposed “Authorization for the Use of Military Force” was examined this week in the U.S. Senate Foreign Relations Committee. Sponsored by Republican Sen. Bob Corker and Democratic Sen. Tim Kaine, the measure was written to “authorize the use of military force against the Taliban, al Qaeda, the Islamic State in Iraq and Syria, and designated associated forces, and to provide an updated, transparent, and sustainable statutory basis for counterterrorism operations.”

The new Authorization appears to permit presidents to use military force, without limits, in Afghanistan, Iraq, Libya, Somalia, Syria and Yemen. A president could also use military force anywhere on the planet against al Qaeda, ISIS and the Taliban and their “associated forces,” which are defined in the measure.

An aide to Nevada Sen. Catherine Cortez Masto said she’s reviewing the new Authorization proposal and “continues to discuss with her colleagues the best way to ensure Congress maintains its constitutional role in declaring war, while ensuring our military has the flexibility it needs to prosecute the fight against ISIS and Al Qaeda. The Senator remains committed to providing the resources and support our men and women in uniform need to defend this nation while making sure that this, and any future President, are held accountable for not dragging our country into unnecessary conflicts.”

A spokesperson for U.S. Rep. Jacky Rosen said Rosen “continues to believe that Congress should consider a new Authorization for Use of Military Force (AUMF) and that the administration must work with Congress to develop a coherent and effective long-term plan to address the conflict in Syria.”

Reactions from Sen. Dean Heller and Rep. Mark Amodei were not yet available.

All current military operations underway are being conducted under the previous two AUMFs enacted by Congress after Sept. 11, 2001 and in the runup to the Iraq war in 2002. Those two Authorizations, enacted 16 and 17 years ago, have covered a multitude of actions, including two wars in Afghanistan, two in Iraq, one in northwest Pakistan, one in Somalia, one in the Indian Ocean, one in Yemen, two in Libya, one in Syria, one in Niger—and whatever other operations are little known to the U.S. public.

From Aug. 28, 1793 when President Washington refused to go to war against the Chickamauga nation because Congress had not given him permission—thereby setting a powerful precedent—until World War II, when President Franklin Roosevelt asked Congress to declare war after the Japanese attack, presidents tended to respect the war-making power vested in Congress.

But then on June 27, 1950, President Truman shocked official Washington by effectively declaring war, saying he had “ordered United States air and sea forces to give the Korean government troops cover and support.”

Some members of Congress, like Republican Sen. James Kem of Missouri, tried to object. Senate Republican leader Robert Taft said, “I would say there is no authority to use armed forces in support of the United Nations in the absence of some previous action by Congress dealing with the subject.”

But they were overwhelmed by flag-waving leaders like Senate GOP floor leader William Knowland who rallied behind Truman, thus setting a new precedent by doing nothing to assert congressional authority when Truman acted without it. Ever since, there has been tension between the two branches over the issue. Democrats after Vietnam tried to deal with the matter, but liberal belief in a strong executive undercut their ability to return affairs to a pre-1950 status. The result was a War Powers Act that has never satisfied anyone. And Authorizations for the Use of Military Force have authorized a broad swath of wars.

The Congressional Reference Service produced a briefing paper in 2016 that said the two existing Authorizations—2001 and 2002—have been used to launch 37 military operations: “Of the 37 occurrences, 18 were made during the Bush Administration, and 19 have been made during the Obama Administration.” This, remember, lists only those actions disclosed to the public.

All these military operations have been conducted without a president ever asking for a declaration of war and without Congress ever declaring war. In effect, Congress handed off its war-making power to presidents. And critics say it is trying to do it again with the Corker/Kaine measure. Rep. Barbara Lee—who voted against both previous Authorizations—argues in tweets that the new Authorization “will expand, rather than limit, our wars around the world. … It would: 1. codify our existing wars in six countries 2. allow the president to expand our wars 3. allow #EndlessWar to continue without geographic constraints or time limits.”

House Speaker Paul Ryan says current Syrian operations do not need consent from Congress: “The existing AUMF gives him the authority he needs to do what he may or may not do.” But the New York Times reported on April 23 that Defense Secretary James Mattis wanted congressional approval before the April 14 strikes against Syria but was overruled.

Democratic Sen. Jeff Merkley opposes the proposed new Authorization. “This new AUMF has no sunset clause—meaning it can be used indefinitely by President Trump and his successors to continue expanding the scope and geography of U.S. military action around the world,” he said.

Curbing Trump

Some observers have suggested that there are risks to repealing the two earlier Authorizations, even when replacing them with a third. At the legal blog Lawfare, Robert Chesney wrote about how the new proposed Authorization handles the matter:

“It repeals the 2001 and 2002 laws, but it states in two places that the new AUMF ’provides uninterrupted authority’ (emphasis added) to continue using force as had been authorized by the 2001 AUMF—and only the 2001 AUMF. This should defeat any objection by the administration that passage of this AUMF would undermine existing authorities relating to those named groups (or their ’associated forces’). At the same time, it also would be helpful in foreclosing a different sort of mischief: future invocation of the 2002 (Iraq) AUMF in order to carry out an action that cannot be carried out under Article II alone and that cannot be justified under the 2001 authorization either. What might that be? Perhaps nothing. But considering the Iranian role in interfering with Iraqi affairs, I suppose it is possible someone might one day argue that the 2002 AUMF preauthorizes at least some uses of force against Iranian targets. Under the new bill, that argument would be foreclosed.”

Donald Trump, given his personality and governing style, has been a special case in terms of letting presidents act on their own. Last year, Republican Sen. Rand Paul of Kentucky forced the Senate to vote on whether to debate his amendment that would have repealed the 2001 Authorization, reducing Trump’s ability to act on his own in making war.

In Wisconsin’s Capital Times at that time, John Nichols wrote, “Unfortunately, only 36 senators had the foresight and courage to vote to place reasonable restrictions on Trump’s war-making powers. One of them was Wisconsin Sen. Tammy Baldwin. She joined 31 Democrats, two independents who caucus with the Democrats (Vermont’s Bernie Sanders and Maine’s Angus King) and three Republicans (Paul, Utah’s Mike Lee and Nevada’s Dean Heller) in supporting a move to open debate on Paul’s proposal to repeal the open-ended 2001 AUMF.”

Professor Hal Brands at the Johns Hopkins University School of Advanced International Studies argues:

“For decades, or even longer, countless senators and representatives have complained that presidents are not properly respectful of their constitutional prerogatives in making decisions on employing U.S. military power. And today, most Democrats and a number of Republicans seem to agree that President Donald Trump is an impulsive, erratic, even dangerous commander-in-chief. Yet even at a time when so many on the Hill argue that the president cannot be trusted, Congress as a whole is showing little inclination to constrain executive authority in the use of force. … [W]hat if the administration had decided to undertake a more significant air campaign against the Assad regime, one that risked Russian casualties and held a higher danger of unwanted escalation? What if this or a future administration decides that a preventive attack on North Korea’s nuclear and missile facilities is, regrettably, necessary?”