Before repealing or “refining,” it would be helpful to know how Obama interprets the post‐9/11 AUMF. As Sen. Robert Menendez, D-N.J., put it:
“What [do] you feel the AUMF gave you that you didn’t have otherwise constitutionally?”
Committee members pursued at least a dozen variations on that theme without getting a straight answer. But Preston’s partner, State Department legal adviser Mary McLeod, eventually folded under questioning from Sen. Bob Corker., R‐Tenn.
Corker: “[Y]es or no, if the 2001 AUMF was undone, can the president carry out the activities that he’s carrying out right now?”
McLeod: “Yes, I believe he could, Senator Corker.”
“So we really, as a Congress, don’t need to be involved in this subject at all,” Corker spat.
Maybe not. Further inquiries tortured out a view of presidential war power nearly as broad — if not nearly as forthrightly expressed — as that held by the Bush‐Cheney team.
McLeod testified that Obama has unilateral authority to attack Syria even without an imminent threat to the United States. And when Sen. Chris Murphy, D‐Conn., asked her whether the administration thought it needed any congressional authorization to wage war on countries harboring terrorists, McLeod issued a non‐denial denial: “I can’t give you a definitive answer.”
“I would love a clear ‘no’ to that question,” Murphy complained.
Finally, who are we at war with, anyway?
Clarity on that question would have been welcome as well; you might even say that “our democracy demands” an answer. But when Corker ran through a list of jihadist groups, he couldn’t get one. In the administration’s view, it’s too dangerous to let the American public — and perhaps Congress as a whole — know who the enemy is.
“Can you tell me those things in a classified setting?” Corker asked.
Preston: “that would have to take place in a classified setting.” Observant readers will notice that Preston’s answer fell somewhat short of “yes.”
The Obama administration hopes to dodge the issue of perpetual war with pious blather and obfuscation. But members on both sides of the aisle are growing increasingly sick of those tactics. Sometimes when you “welcome the debate,” you end up having to go through with it anyway.