For nearly four years, Congress has abdicated its responsibility as first President Obama and then President Trump waged war against Islamic State without obtaining express permission from the only branch of the federal government with the power to declare war. Now, at long last, a bipartisan group of senators has introduced legislation that would provide congressional authorization for the campaign against Islamic State while reaffirming the president’s authority to use force against Al Qaeda, the Taliban and “associated forces.”
Unfortunately, the new Authorization for Use of Military Force proposed by Sens. Bob Corker (R-Tenn.), the chairman of the Senate Foreign Relations Committee, and Tim Kaine (D-Va.) is far too deferential to the executive branch. If Congress wants to reclaim its role in matters of war and peace, it must be more assertive.
Some might question why Congress would bother to weigh in on the war against Islamic State now that, as Trump put it last week, the group is “essentially just absolutely obliterated.” But while the so-called caliphate has lost almost all of the territory it once controlled in Iraq and Syria, remnants of the organization remain, and for now the Pentagon has convinced Trump that 2,000 U.S. troops should stay in Syria to prevent it from staging a resurgence.
It’s never too late for Congress to weigh in on that deployment and the larger effort against Islamic State. It is also long past time for Congress to update the 2001 Authorization for Use of Military Force that it approved after the Sept. 11 attacks — which has provided legal underpinning not only for the continued U.S. mission in Afghanistan but also for other military operations, including the campaign against Islamic State.
If the president seeks to add new enemies or new battlefields, those decisions too must require congressional approval.
The Corker-Kaine bill accomplishes both of those objectives. It also would repeal a separate authorization passed in 2002 empowering the president to use force to deal with “the continuing threat posed by Iraq.” That was the legal justification for President George W. Bush’s 2003 invasion of that country, but it also has been pressed into service as a rationale for the war against Islamic State. The 2001 and 2002 authorizations would be repealed 120 days after the new AUMF took effect.
But although the two senators are correct that a new authorization is overdue, in other respects their legislation falls short of placing meaningful limits on the president’s power to wage war.
One problem is the lack of a sunset provision. When Obama unsuccessfully sought congressional authorization for the war against Islamic State — even as he insisted he already had the necessary authority — he proposed an AUMF that would have expired after three years. The Corker-Kaine bill has no such time limit.
Instead, it establishes a complicated procedure in which the president every four years would submit to Congress a proposal to repeal, modify or leave in place the AUMF. A 60-day period would follow in which Congress would give expedited consideration to legislation to repeal or modify the authorization. But if Congress failed to act, the AUMF would remain in force.
That process unduly strengthens the hand of the president, as does another provision in the bill that would allow the president to expand the list of “associated forces” against which military force may be used. The president would be required to report to Congress on why a new group was being added, and Congress could then vote to disapprove the president’s action. But if it didn’t, the president’s decision would stand.
The bill provides for a similarly convoluted review process if the president decides to use force in a “new foreign country” other than Afghanistan, Iraq, Syria, Somalia, Yemen or Libya. The burden would be on Congress to act to stop the president from using force in that country.
Finally, Corker-Kaine makes no distinction among different kinds of military action, empowering the president to use “all necessary and appropriate force.” That seemingly covers everything from airstrikes and drone attacks to use of special forces, combat divisions and beyond.
The ill-fated AUMF that Obama submitted to Congress in 2015 made it clear that U.S. military action couldn’t involve “enduring offensive ground combat operations.” That reflected Obama’s promise when he announced the campaign against Islamic State that the United States wouldn’t be “dragged into another ground war in Iraq.”
A new AUMF should be similarly circumscribed. It also should contain a straightforward expiration date, after which Congress would have to act affirmatively to renew it. And if the president sought to add new enemies or new battlefields, those decisions too must require congressional approval — not merely a failure to override the president’s decision.
Corker, Kaine and their colleagues deserve credit for asserting Congress’ constitutional prerogative in decisions about when to go to war. But they need a bolder bill.
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