WASHINGTON — A bipartisan bill introduced in the Senate Monday would give the president sweeping authority to wage endless war anywhere in the world with limited congressional intervention.
Perversely billed as a plan to “reassert” Congressional power to “authorize where, when and with who we are at war,” the proposal for a new AUMF (Authorization for Use of Military Force) falls way short of that promise. In fact, it achieves quite the opposite. The bill, if passed, would not only codify all of the authority the president has now to fight Al Qaeda and Taliban and “associated forces” as interpreted in the current 2001 AUMF, but allow the president to add as many targets as desired in the future. Congress can only reverse these add-ons with a veto-proof supermajority, and the White House is not mandated to fully disclose any new “associated forces” publicly or even to the full Congress. Nor is there a sunset provision requiring Congressional reauthorization, only a mere “review” every four years.
War critics on both the Left and Right were up in arms Tuesday over the details of the bill, which was introduced by Republican Sen. Bob Corker (R-Tenn.) and Democratic Sen. Tim Kaine (Va.). Unlike the 2001 AUMF, it names the Islamic State with the Taliban and Al Qaeda and five designated “associated forces” (Al Qaeda in Syria, Al Qaeda in the Islamic Maghreb (AQIM), Al Qaeda in the Arabian Peninsula (AQAP), Al Shabaab, and the Haqqani Network), which would essentially allow the U.S. military to engage in hostilities in Yemen, several countries in East and North Africa, Syria, Libya, Iraq, Afghanistan and anywhere else these and any new groups may pop up in the future.
In short, it’s a rubber stamp for the global war on terror.
“Beyond being all but a full abdication of war powers vested to Congress in the Constitution, an AUMF that encourages perpetual, indefinite war is fundamentally at odds with fiscal conservatism and wise use of taxpayer dollars, as well as with wise use of our armed forces and its men and women who deserve robust debate over when and where they are asked to put their lives on the line for their country,” exclaimed Sarah Anderson, policy analyst for FreedomWorks, one of the conservative groups in Washington lining up against the bill, in an email to TAC.
There have been many efforts over the years, particularly by Corker and Kaine, to update the legal framework for current military actions overseas—whether that be bombing, hunting or detaining terrorists abroad—so that the administration would not have to keep stretching the 2001 (signed after 9/11) and/or the 2002 AUMF (signed ahead of the Iraq invasion) to cover new targets. There’s a sense that Presidents Bush, Obama and now Trump have been using the old AUMFs to engage in unilateral war without Congressional debate or blessing, and many lawmakers want to weigh in. Heralding his bill on Twitter, Sen. Kaine said it would take away Trump’s “blank check” for those White House wars and open them up to debate in the Congress.
Sadly this proposal essentially gives him the entire bank, with Congressional approval.
“It’s a well-intentioned effort that is unfortunately going to achieve the opposite,” said Rita Siemion, international legal counsel for Human Rights First. Blame the competing interests on the Hill: everyone knows the hawks would rather keep the status quo and won’t go for a bill that appears to tie the president’s hands. Any legislation with sunsets or transparency or even a stronger Congressional hand would be dead on arrival under the current Republican leadership.
“They (lawmakers) think they will have weighed in, and there’s this idea that it’s better than not weighing in at all, but I just don’t share it,” she told TAC Tuesday. “It’s going to be handing over significant powers to President Trump and any future president with no limits on which groups the nation goes to war with.”
At a time when Sens. Mike Lee (R-UT) and Bernie Sanders (I-Vt.) have been arguing that the Congress should have a vote on whether the U.S. continues to assist in the Saudi war on the Houthi in Yemen under the War Powers Act, this bill would in essence abdicate those powers. Here, the president gets to make war on anyone he wants with Congress only voting after the fact. And without a veto-proof two-thirds majority, Congress cannot overrule him.
“When the founders wrote the Constitution they understood that military conflict was a big deal,” charged Kurt Couchman, vice president for public policy at the conservative Defense Priorities, in an interview with TAC. “They saw sovereigns go bankrupt over a series of wars started by kings, and they did not want our president to be king. You need the people to be on board through their representatives. (This proposal) ensures wars will continue on auto-pilot only subject to the president’s discretion.”
If that doesn’t sound monarchical enough, consider this: under the current rules any new interpretations of the AUMFs—including new “associated forces”—can remain classified. While the 2018 National Defense Authorization Act (NDAA) finally incorporated some reporting procedures requiring that changes like new targets must be shared with key congressional committees and leaders, most of the important stuff has been redacted from the public record, said Siemion, and will continue to be classified under the new measure.
In a primer on the Corker-Kaine bill Tuesday, Robert Chesney at the Lawfare blog said the lack of transparency has been status quo for some time:
“…as things currently stand there is no requirement for the public to be told when new groups are so designated. To be sure, the public sometimes is told, but nothing in current law requires this, and the track record involves much less clarity than one might like. For a considerable time, even Congress apparently had trouble acquiring this information, though that seems to have changed recently.
So what will change under Corker-Kaine? Absolutely nothing, said Siemion. The president can initiate drone strikes against targets operating under new flags (there is some effort to define “associated forces” in the bill, but there is a lot of wiggle room), and only has to inform certain members of Congress. Furthermore that information will likely never see the light of day.
“At a minimum, the public, the American people, should know who we are going to war with,” said Siemion.
Mark-ups could begin as early as next week—without a hearing. Sources say that members are already lining up to load the bill with amendments that would put restrictions on the president’s power, including a sunset clause, and that might spell its doom. Or it could be pushed to a vote as is. Tensions are already running high after the president initiated strikes against Syria last week without Congressional approval.
“My fear is that this new authority will not constrain the president but expand presidential power,” Sen. Rand Paul told Fox News Tuesday morning, signaling his own opposition to the Corker-Kaine proposal.
Couchman said a rush to pass–or not pass–the proposal may gloss over serious debates the Congress should be having on war policy, including how effective the U.S. military strategy is for the safety and health of the nation.
“A broader debate needs to happen. It’s not necessarily about legal authority, because legal authority is not sufficient for these questions. We also need to get back to core issues—issues of national interest, diplomacy, the use of force, and other foreign policy tools—and how best to keep Americans safe, free, and prosperous.”
Kelley Beaucar Vlahos is the executive editor of The American Conservative. Follow her on Twitter @Vlahos_at_TAC.