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Congress’s Embarrassingly Empty (National Security) Record

This week, we learned the United States will send 250 special operations troops to the war in Syria, bringing the publicly known total number of American troops operating in the country to 300. This news came little more than a week after the Pentagon announced it was sending 200 more troops and Apache attack helicopters to Iraq, pushing the official US troop numbers there to 4,087 (this number doesn’t include units temporarily deployed into Iraq). While the Obama administration still maintains these Americans are in the middle east on a “train and advise” mission, its long been apparent these troops are engaged in combat against the Islamic State.

These increasing numbers of Americans fighting against the Islamic State have stirred concerns from some lawmakers about a creeping growth of an American war in the Middle East. Earlier this month, Sen. John McCain (R-Ariz.) publicly said what might have been on the minds of many, that the US’s slowly escalating war against ISIL is starting to remind him of the Vietnam War.

These comments came barely a month after the House Judiciary Committee’s (subtly named) Task Force on Executive Overreach held its first hearing, the purpose of which was to begin developing a record of President Obama’s many excesses — from health care to immigration to environmental regulation to the war against the Islamic State in Iraq and the Levant (ISIL). But by the end of the hearing, the one point of agreement between the witnesses and lawmakers appeared to be that, any expansion in the White House’s willingness to leave lawmakers behind and take action on a number of fronts, isn’t the fault of an overly aggressive President, but rather a Congress that simply hasn’t been governing. At all.

Consider the data: As of today, the current Congress has passed 146 public laws in 16 months on the job. By contrast, the Congress famously derided by President Truman as the “Do-Nothing Congress” enacted 906 bills during its tenure. And even the most unproductive Congress in American history — which served from 2011 to 2013 — passed 283 laws, a pace the current legislature is on track to fall far short of.

But while Congress’s refusal to govern has been fairly ubiquitous — ranging from confirming a nominee to fill Justice Scalia’s seat on the Supreme Court to everyday matters like the budget — there is no area in which Congress’s abdication has been more embarrassing (or the potential consequences more alarming) than with regard to national security policy, including its refusal to pass meaningful cybersecurity legislation; its obstinacy vis-à-vis Guantánamo; and its inability to provide legislation that might have avoided the recent fight over encryption between Apple and the FBI. But by far, the most significant and troubling example of Congress’s refusal to act is with regard to the ever-increasing use of military force against ISIL. Congress is refusing to exercise its obligation to govern what could become a never ending war that began with al-Qaeda and the Taliban in Afghanistan, and has expanded to include ISIL and a number of “affiliates” around the world. What are we going to do about the next ISIL when it inevitably emerges?

The problem is simple to describe: The Obama administration has maintained since September 2014 that, apart from isolated and limited acts of self-defense, its general authority to use military force against ISIL derives not from Article II of the Constitution, but from the September 2001 Authorization for the Use of Military Force (AUMF). But that authorization, enacted days after September 11, says nothing at all about ISIL; it only authorizes force against groups that were responsible for, or assisted in, the 9/11 attacks (which occurred before ISIL even existed). In other words, the administration is using a statute Congress passed looking backward at 9/11 in order to use military force against new terrorist groups with increasingly less of a connection to those attacks, and in places increasingly far-removed from al-Qaeda’s post-9/11 hiding grounds in Afghanistan and Pakistan.

As Jen Daskal recently put it, the danger lies in the fact that Congress’s failure to act has normalized the notion of an endless war authorized so long ago that we may see a day where many fighting it weren’t even alive at its outset:

What about the Islamic State’s successors? Their successors? Such an expansive reading of the 2001 authorization has now been normalized, in large part endorsed by Congress and, to some extent, the courts.

We simply don’t know how future administrations will use the broad authority to fight the government currently relies on. Failing to authorize this war sets a precedent for future presidents to wage war with no congressional check on that power. This strips Congress and by extension its constituents, of the power to decide when to go to war and how long to continue the fight. Without a new authorization, will the next president and the one (or six) after that rely on this precedent to go to war against whichever organizations they deem covered by the 2001 document?

Even President Obama, like large cohorts of both parties in Congress, appears to agree that the 2001 AUMF is outdated — and that, if the United States needs to continue attacking ISIL, Congress ought to pass a statute specifically authorizing, and limiting, such hostilities. Such a statute would not only set the parameters for the current conflict, but it would reassert Congress’s constitutional and institutional role in warmaking, whether or not the President already has statutory authority for the actions he is undertaking.

To date, Republican leaders in Congress, including Senate Majority Leader Mitch McConnell, have made clear that they have no interest in considering an ISIL AUMF this year. As McConnell explained in December, “I don’t think we ought to be passing an AUMF as the President exits the stage when he already thinks he has the authority to do what he’s willing to do now.” Contrast that with what Senator McConnell said in December 2014: “It would be even better if the President asked us for what he wants, but we’re not going to wait forever. … They’re a serious threat to our national security. And we’re going to have to act.” Hypocrisy aside, defending Congress’s refusal to act by reference to an “election year” runs into two separate problems:

First, and perhaps most significantly, elections are supposed to serve as a referendum on the political branches’ actions. Waiting until after the election to enact a policy that is arguably needed now is, in many ways, antidemocratic, as it removes any real chance for the policy initiative at issue to become a rallying point at the ballot box. Imagine if the scope of the conflict Congress has expressly authorized against ISIL became a campaign issue; we might actually learn something about what military role Americans will — and will not — support. It could even be argued that by failing to effectively police this issue, Congress is contributing to voter apathy on one of the most important duties elected officials are charged with, deciding whether or not to go to war. While a somewhat slight majority of Americans may approve of the creeping escalation of the war in Iraq and Syria, it is lawmakers’ duty to thoroughly debate this and decide whether to authorize a war, in this case a war that will turn two years old in less than six months.

Second, for Congress to be in session and to simply refuse to vote, one way or the other, on war powers the President is already exercising (to a large degree openly), is for Congress to invite future presidents not just to engage in greater unilateral warmaking, but in greater unilateral action during wartime, writ large. It would be one thing if Congress wasn’t acting because it was convinced the President would veto any legislation (thereby exposing Congress’s institutional weakness). But here, the President has repeatedly suggested that he would welcome a bill, has drafted one of his own, and has supported drafts provided by various members. (To date, President Obama has vetoed the fewest bills of any two-term president since James Monroe.) Waiting for the next president in the face of those circumstances is about as dangerous an abdication of the legislature’s constitutional authority as I can think of — especially where the war powers are involved.

“There may be a time for an AUMF,” Senator McConnell concluded in December, but “I don’t think it’s now.” In this regard, Senator McConnell and I are in complete agreement. The time was the fall of 2014. But 2014 was an election year — and legislating, it increasingly seems, is far less of a priority to this Congress than demagoguery. Even if that strategy increases the power of a political party in the short term, it will decrease Congress’s power in the long term.

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).