Tag: AUMF

Sen. Tim Kaine at Cato: A Year (and Counting) of Unauthorized War

This week marks the first anniversary of our latest war in the Middle East, but after some 5,000 airstrikes in two countries, and with 3,500 U.S. troops on the ground, we’ve yet to have an up-or-down vote in Congress on authorization for the use of military force against ISIS.

We’re recognizing—“celebrating” isn’t the right word—that unhappy anniversary at Cato with a talk by Senator Tim Kaine (D-VA), who holds the unfashionable view that Congress ought to vote on the wars we fight, and has been waging a (sometimes lonely) battle to get his colleagues to live up to their most important constitutional responsibility. The event runs from 9:00-10:00 AM on Thursday, August 6, so you can hear about the erosion of congressional war powers and grab your morning coffee without getting to work too late; RSVP here.  

President Obama announced the first wave of airstrikes in Iraq on August 7, 2014, and expanded the campaign against ISIS to Syrian territory in September. But it took him six months to send Congress a draft Authorization for the Use of Military Force—along with a message insisting that “existing statutes provide me with the authority I need” to wage war anyway.  Since then, as Senator Kaine recently noted, “Congress has said virtually nothing.” Recent headlines make that all too clear: “Congress avoids war debate as ISIL advances” (Politico, 5/28); “Islamic State War Authorization Goes Nowhere, Again” (Bloomberg, 6/9); “House kills measure to force debate on military force against ISIS” (The Hill, 6/11)…and so on. 

In the debate over the 2016 National Defense Authorization Act last month, Senator Kaine noted that, in the bill, Congress addresses military minutia in “excruciating detail,” but, at the same time, “we don’t want to vote on whether the nation should be at war.” When Kaine cosponsored (with Senators Jeff Flake (R-AZ) and Joe Manchin (D-WV)) an amendment to the NDAA “expressing the sense of the Senate that we should have an authorization debate about whether we should be at war with ISIL,” it was ruled out of order: “so barracks mold, yes; vehicle rust, yes; the athletic programs at West Point, yes;” he sums up, but “whether we should be at war, nongermane to the Defense authorization act. Interestingly, we even took a vote on the floor of the Senate in the NDAA about whether we should arm the Kurds in a war that Congress has not authorized that we could debate and vote on; but whether we should be at war we have not debated and voted upon.”

The president’s claim that he already has all the authority he needs to wage war with ISIS is, as Senator Kaine put it in an earlier speech, “ridiculous.” Its principal basis is the AUMF Congress passed three days after the 9/11 attacks and was intended to be used against those who “planned, authorized, committed or aided” the September 11 attacks or “harbored” those who did. Its main targets were, obviously, Al Qaeda and the Taliban, yet now, nearly 14 years later, the administration insists it serves as legal justification for a war of at least three years, in at least two countries, against a group that is not only not a “cobelligerent” with Al Qaeda, but is engaged in open warfare against the group. Building on the Bush administration’s expansive interpretation of the 2001 authorization, the Obama administration has turned the 9/11 AUMF into an enabling statute for an open-ended globe-spanning war. “This is unacceptable,” Senator Kaine argues, “and we should be having a debate to significantly narrow that authorization” as well. 

The decision to go to war is among the gravest choices a constitutional democracy can make. The Framers erected firebreaks to hasty action, designed to force deliberation and consensus before the resort to deadly force. As James Wilson put it to the Pennsylvania ratifying convention, “this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ Join us Thursday as we explore how Congress can take that power back. 

Free Advice from Bill Kristol

Republicans who still look to Bill Kristol for political advice will find his case that “yes” is “The Right Vote” over at The Weekly Standard today. Ignore those melting phone lines, Kristol urges congressfolk: despite what your constituents are telling you, “no” on the Authorization for Use of Military Force (AUMF) in Syria is actually “the risky vote.”

If Republicans refuse authorization, Kristol argues, “the GOP can be blamed for whatever goes wrong in Syria, and elsewhere in the Middle East, over the next months and years. And plenty will go wrong.” If they don’t want the Middle East mess hung around their necks, he says, then Republican lawmakers should vote for bombing Syria—and “consider moving an authorization for the use of force against the Iranian nuclear weapons program.” See, that’s how you minimize your political risk. With double the bombing, what could possibly go wrong?     

It’s not the most persuasive bit of political analysis I’ve ever read. But, disturbingly, Kristol’s on to something in this paragraph:

A Yes vote is in fact the easy vote. It’s actually close to risk-free. After all, it’s President Obama who is seeking the authorization to use force and who will order and preside over the use of force. It’s fundamentally his policy. Lots of Democrats voted in 2002 to authorize the Iraq war. When that war ran into trouble, it was President Bush and Republicans who paid the price. If the Syria effort goes badly, the public will blame President Obama…. If it goes well, Republicans can take credit for pushing him to act decisively, and for casting a tough vote supporting him when he asked for authorization to act. 

There’s genuine insight there into the way we war now, and how Congress shirks its constitutional responsibilities. Domestically, as David Schoenbrod has observed, broad delegations of power allow Congress “to kiss both sides of the apple,” taking credit for the benefits of the legislation they pass and railing against whatever costs the executive branch imposes.

Congress plays the same “shell game” abroad. Where possible, modern Congresses have preferred to punt to the president and reserve their right to criticize him should military action go badly—to be for the war before they were against it, or vice versa, depending on which way the political winds blow. That’s how it worked in Vietnam and in Iraq—and that’s the danger with the Senate’s loosely crafted Syria AUMF. The provisions that purport to limit presidential action are too weak to stick, but if we get a wider, bloodier war, they’ll allow legislators to say: “That is not what I meant at all.” It’s TARP with Tomahawks. 

Still, there’s always the risk that the marks will see through the shell game. And at this point, Congress seems unconvinced that a “yes” vote is “close to risk free.” 

The Senate’s Draft AUMF: Don’t Fix What the President Shouldn’t Have

Yesterday, I commented on the strikingly broad authority the Obama administration proposed in its draft Authorization for the Use of Military Force in Syria, and argued that Senate leaders’ attempts to narrow the proposed authorization were misguided: “Congress shouldn’t ‘fix’ what the president shouldn’t have.”

The Senate Foreign Relations Committee’s revised AUMF, released this morning, hasn’t changed my mind. 

  • They’ve added some adjectives to the operative clause, authorizing the president “to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner” (bespoke airstrikes?) against “legitimate military targets,” and tightened the stated goals somewhat. But again “he determines” whether those conditions have been met. 
  • Worst of all, despite purporting to bar “the use of the United States Armed Forces on the ground in Syria for the purpose of combat operations” (Sec. 3) and limit airstrikes to targets “in Syria,” (Sec. 2(a)), the draft (unwittingly?) undermines those restrictions at the outset. The revised AUMF gives away the game in the last clause of Section 1 with a gratuitous and overbroad concession about the scope of the president’s authority to use force without congressional authorization: “the President has authority under the Constitution to use force in order to defend the national security interests of the United States.” That’s far broader than the WPR’s description of the president’s independent constitutional authority to take action in “a national emergency created by attack upon the United States… or its armed forces”–and broader than the original understanding that the president retained the power to “repel sudden attacks.” The language in the Committee’s draft AUMF implicitly endorses a power to launch sudden attacks when the president deems them in “the national security interests of the United States.” 

Former Bush OLC head Jack Goldsmith calls it “the broadest such clause I have ever seen”–“the draft AUMF enhances, through congressional recognition, the President’s claims of independent constitutional authority to use force in Syria.” Coupled with other provisions in Section 1 affirming that Syria’s possession and use of unconventional weapons “constitute a grave threat to … the national security interests of the United States,”–that phrase again–it gives President Obama additional cover to go beyond what’s authorized in the resolution–flouting the time limits, introducing ground troops, striking targets outside of Syria, and the like.

Goldsmith sums up: “If the Senate draft becomes law, the President should be very pleased.” Americans, who are rightly sick of Middle Eastern entanglements and Tomahawk humanitarianism, will likely have a very different view  

The Syria AUMF: Be Careful What You Vote For

Whatever his motivations, it’s good that President Barack Obama has departed from past practicelet the Tomahawks fly and Congress be damnedand gone to the people’s representatives so they can stand and be counted. 

But, as I note in today’s Washington Examinerthat vote isn’t without danger. The draft authorization for the use of military force the administration circulated Saturday is strikingly broad. And if we know anything from the history of past AUMFs, it’s that presidents will push the authority they’re given as far as language will allow—and possibly further. 

In his Rose Garden press conference Saturday, Obama said “we would not put boots on the ground.” The action he’s contemplating would be “limited in duration and scope.” Just a “shot across the bow”—a light dusting of cruise missiles.  

The draft AUMF says no such thing:

  • It authorizes the president to use U.S. “armed forces,” not just air power. 
  • He can do that “as he determines to be necessary and appropriate,” so long as it’s “in connection” with use of unconventional weapons in Syria—and again, he determines what connection exists.
  • It doesn’t limit him to striking Syrian government forces, and it doesn’t limit him to Syria. It’s loose enough, as former Bush Office of Legal Council head Jack Goldsmith points out, to allow the president to wage war against Iran or Hezbollah in Lebanon, so long as “he determines” there’s some connection to WMD in Syria.
  • And it doesn’t contain a “sunset clause” time-limiting the authority granted—which means that authority will be available for future presidents as well. 

As a reminder, here’s LBJ announcing his decision to go to Congress for the Gulf of Tonkin Resolution, piously intoning that “we Americans know, though others appear to forget, the risks of spreading conflict. We still seek no wider war.”

 

Fighting Terrorists Not the Same as Fighting Terror

I have a new piece up this morning at CNN’s Global Public Square, co-authored with Mieke Eoyang of Third Way, making the case against an expanded Authorization for Use of Military Force (AUMF). Rather than thinking of new powers to hand over to the president, Congress should revisit the original rationale for the AUMF, and realize that, with the end of combat operations in Afghanistan by late 2014, such authorities are no longer required. In the future, should additional threats emerge that the president is unable to address without taking the country to war, then Congress can and should declare war, on an enemy, and with a clear end-goal in mind.

As it currently stands, the AUMF has become a catch-all for any U.S. government activities that can be cast as counterterrorism. It has allowed what should have been a small and achievable mission–killing or capturing those who planned the 9/11 attacks, and those who helped them, and degrading al Qaeda’s ability to carry out future such operations–to become a quixotic and unbounded global crusade, the longest war in the nation’s history, with no end in sight. One proposed revision would only compound this problem, making it easier for the president, this one or his successors, to expand the list of targets, and this war, at his or her discretion. So long as the nation remains on a war-footing, the government will always find new wars to fight. 

The GPS piece was written before the revelations of U.S. government surveillance of U.S. citizens’ phone records, and, perhaps, Internet usage. But the themes are connected: how does the U.S. government strike a balance between protecting the rights and liberties of American citizens, and securing those same citizens from physical harm, especially from individuals (i.e. terrorists) who use violence or the threat of violence against innocent people for political purposes? The American people, usually jealous of government intrusions in their private lives, have been far more tolerant of such intrusions over the past 12 years for a simple reason: they are scared. Indeed, they are terrified. Counterterrorism should address that psychological condition as much as it does the people that cause it. And we don’t need an expanded AUMF to do that.

The government has done an able job of rounding up terrorists and their accomplices; core al Qaeda has been practically eliminated, and its would-be successors are notably unsophisticated. The AUMF had little to do with that, with the important exception of those initial operations conducted in and around Afghanistan. The government has also collected, chiefly through traditional law-enforcement methods, an additional cohort of idiots, nitwits, and utter incompetents, many of whom were unlikely to harm even themselves, let alone innocent bystanders. The small likelihood that they might succeed has justified further extraordinary efforts, about which we now know a bit more. Again, such capabilities do not hinge on an AUMF.

By contrast, the government has done a terrible job of reducing people’s fears, and the context of the AUMF–reminding the public that we are at war–probably makes the problem worse. By and large, despite a few hopeful signs, we are still terrorizing ourselvesThis was the overarching theme in a collection of essays that I edited with Jim Harper and Ben Friedman. The book was published nearly three years ago. Its message, unfortunately, still remains relevant today.