A U.S. Army howitzer firing at Islamic State positions in Iraq in 2016.
Last Friday, Rita Siemion published an insightful analysis of the Trump Administration’s first meaningful public statement on its authority for the ISIS war, which came in the form of a letter from the State Department to Senate Foreign Relations Committee (SFRC) Chairman Bob Corker. The letter was released the same morning that Secretary of State Rex Tillerson and Secretary of Defense Jim Mattis briefed the SFRC on the Administration’s views regarding “the Authorizations for the Use of Military Force.”
Rita characterized these developments as follows: “Just as Congress was showing signs that it might, after 16 years, start to rein in the nation’s growing list of post-9/11 wars, the Trump administration told Congress no thanks, we are happy with the overbroad authorities we’ve got.”
I share her take, with one important caveat: I see little evidence that Congress’s newfound interest in tackling post-9/11 war authority would result in “rein[ing] in” much of anything. What’s worse, I don’t think many lawmakers view that as their role. Given the backdrop against which they would be legislating, that’s deeply troubling—both in the war powers context and from a broader institutional perspective.
The current AUMF debate has become almost entirely unmoored from both its constitutional roots and recent history. This post is a modest attempt to begin resetting it. Below I underscore some war powers first principles, and suggest what fidelity to those principles demands in terms of lawmakers’ approach to revising the 2001 AUMF, or to crafting a new one. (Note: much of what follows is adapted from a statement for the record that I submitted on behalf of The Constitution Project to the House Foreign Affairs Committee in connection with its July 25 AUMF hearing.)
Why the Framers assigned Congress the war power
The Constitution could have given the President primacy in deciding whether to take the country to war. Save for a narrow set of defensive circumstances (i.e., to repel a sudden or actually imminent attack), it does not. Congress was assigned that power. The reasons why are important.
First, human nature compels our constitutional separation of war powers. As James Madison cautioned, if those powers were accumulated in the executive branch, “the temptation would be too great for any one man.” Second, it is central to our democracy that Congress be politically accountable when the government sends young Americans into harm’s way. Third, collective judgment about whether and when the United States should use force—fashioned through a full, serious and transparent debate among our elected representatives—is superior to that of any one person.
All of these reasons share the same animating principle: constraint. Our system of checks and balances was designed to guard against war; to ensure it is the carefully limited exception, peace the rule.
Important context for the current AUMF debate
If Congress decides to weigh in—to address pre-existing war authorities, pass a new one, or both—it will not be doing so in a vacuum. In order to meaningfully fulfill their constitutional obligation, lawmakers must be clear-eyed about the backdrop against which they would be legislating. The following three factors, in particular, should weigh heavily in Congress-members’ decision-making.
First, seizing on its sparse and evidently not precise enough text, both Presidents Obama and Trump have stretched the 2001 AUMF far beyond its breaking point. Through the concepts of “associated forces” and “successor entities”—neither of which appears in the 60-word statute—the Obama Administration took a law intended specifically to target those responsible for the September 11 terrorist attacks and used it to justify military operations against some groups that had no role in 9/11, and against others that did not even exist on 9/11. President Trump has now formally adopted his predecessor’s position and pressed it even further, claiming that the 2001 AUMF covers not only ISIS, but also Syrian government and pro-Assad forces where “necessary and appropriate” in order “to defend U.S., Coalition, or partner forces” engaged in the anti-ISIS campaign.
Had the 2001 AUMF been drafted more clearly, specifically, and narrowly, it might very well have precluded the interpretive gymnastics necessary to grounding so many operations in that law nearly 16 years later.
Second, the executive branch has become increasingly hostile towards congressional oversight, and Congress has largely failed to push back. This is neither a partisan phenomenon, nor one confined to a particular subject area. For example, in the aftermath of 9/11, President George W. Bush’s administration argued that Congress could not regulate the President’s actions at all when he was acting pursuant to the Commander-in-Chief power. President Obama took the United States to war in Libya in 2011, without prior congressional approval, and in the process claimed unilateral authority to send up to 20,000 troops into battle on the theory that doing so would not necessarily constitute “war” in the constitutional sense. As previously mentioned, Both Presidents Obama and Trump have presided over the expansion of the 2001 AUMF beyond any plausible reading of its text. And, most recently, it came to light that the Trump Administration worked to block congressional attempts to intercede in the immediate aftermath of the original Muslim ban. Specifically, senior Department of Homeland Security officials ordered staff at airports throughout the country “not to engage with … Congressional representatives,” who were often trying to learn basic information, like how many people were being detained.
In the oversight context more generally, the executive branch has over time come to treat Congress less and less as a co-equal branch of government. This is evidenced by federal agencies’ increasingly bold obstructionism in the face of congressional requests for information. For its part, the Trump administration this spring explicitly told agencies to ignore altogether oversight requests from lawmakers of the minority. That instruction was accompanied by a May 1, 2017 Office of Legal Counsel opinion concluding that “such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.”
Third, the Trump administration has delegated significant war-making authority to national security agencies. Shortly after taking office, President Trump reportedly restored CIA authority to conduct lethal drone strikes. In March, the press reported that the Administration is considering weakening current policy standards for the use of force in counterterrorism operations. In April—after the U.S. attacked ISIS militants in Afghanistan with the military’s most powerful non-nuclear bomb; a weapon it had never before used—Trump boasted that he had given the military “total authorization.” Later that same month, the Pentagon confirmed that the President delegated to Secretary Mattis the authority to set troop levels in Iraq and Syria.
Entrusting these kinds of decisions solely to the warfighters—and intelligence personnel who have come to perceive themselves as such—carries serious risk of unchecked escalation. The absence of clear, congressionally-imposed limits on where and when force can be used heightens the risk.
How Congress should approach revising the 2001 AUMF or crafting a new one
As a threshold matter, if Congress disagrees that U.S. service men and woman should be engaged in battle, those men and women should come home. If, however, Congress believes that there are specific entities against which the use of force is necessary and appropriate, it is members’ constitutional duty to say so. Of course, how Congress says so matters tremendously.
There is no shortage of current proposals for a new statute that would authorize force against (at least) ISIS, and in some cases also address one or both of the 2001 AUMF and the 2002 Iraq AUMF. Unfortunately, many of them accommodate a degree of executive unilateralism that the Constitution was designed explicitly to reject. These proposals seem to be written on the assumption that Congress needs to figure out how best to provide the executive branch with greater flexibility to use force, particularly for counterterrorism purposes. Indeed, several Senators comments following the recent SFRC briefing with Secretaries Tillerson and Mattis suggest that Lawmakers from both parties are concerning themselves too much with what legal changes the Administration is interested in or willing to accept.
But given the above-described context in which Senators and Representatives would be legislating—coupled with technological advances that have drastically reduced the barriers to the United States waging global war—the problem is not that Congress has tied the President’s hands too tightly in this area. The problem is that Congress has failed to tie the President’s hands tightly enough. If lawmakers needed any more evidence that this is the situation they face, the president’s increasingly bellicose exchanges with Kim Jong-un should more than provide it. Trump has yet to even acknowledge a role for Congress, much less the primary one, in deciding whether to use force against North Korea absent responding to an actual or legitimately imminent attack.
Just prior to last week’s committee briefing, Sen. Bob Corker (R-TN) told reporters that he plans to hold a hearing on the AUMF proposal co-authored by Senators Tim Kaine (D-Va.) and Jeff Flake (R-Ariz.) Their bill is slowly becoming the center of gravity for the AUMF debate. When the Senators released it this spring, Bobby Chesney, Jack Goldsmith, Matt Waxman and Ben Wittes analyzed it at Lawfare, concluding that “it may be the best effort yet;” Ryan provided a helpful annotation of the bill’s ten key features, noting both some welcome elements and others that could have been addressed differently; and witnesses referenced it repeatedly during the July 25 HFAC hearing.
To be sure, some aspects of the Kaine-Flake proposal are appropriately responsive to and would significantly improve upon the status quo. But others would cede far too much authority to the executive branch, and in ways that would be hard to undo. Americans’ representatives on Capitol Hill can’t let that happen (again) in any new AUMF. If the Kaine-flake bill is going to serve as Congress’s jumping off point, it needs to be revised so that it’s more likely to prove Rita right—by “rein[ing] in the nation’s growing list of post-9/11 wars”—than it is to fail us all by allowing the President alone to expand those wars even further.
Image: U.S. Dept. of Defense.