Does Congress Really Think It’s Reasserting Its War Powers by Giving Them Away to Trump?

Senate Foreign Relations Committee chair Bob Corker (R-TN) speaks to reporters in the Senate Basement on Capitol Hill on April 10. (Photo by Zach Gibson/Getty Images)

After years of more talk than action in Congress, the Senate Foreign Relations Committee is poised to consider a new authorization for the use of military force (AUMF) that would replace the 2001 and 2002 war authorizations that have been in effect for more than a decade and half. Senator Corker, the committee’s Chairman, announced on the Senate floor last month that the committee will hold a markup on April 19th of his proposed legislation to replace the 2001 AUMF passed after the 9/11 terrorist attacks to authorize force against those responsible for the attacks and the 2002 AUMF passed to allow the use of force to address the threat posed by Saddam Hussein.

Those following the AUMF debate over the years know all too well that the 2001 and 2002 authorizations have been stretched by successive administrations for purposes far beyond what Congress intended when they were passed. This includes the claim that those AUMFs apply to ISIS—a group that was not only not responsible for the 9/11 attacks but did not exist on 9/11 (nor three days later when Congress authorized the use of force). Despite fairly specific language and legislative history as to the purpose of the authorizations, the failure to specifically name who force was authorized against, to include an expiration date, or set clear geographic limits in either authorization has enabled creative executive branch lawyers to distort these authorizations far beyond what members of Congress voted to authorize.

The latest executive branch AUMF interpretation shows just how far it can and will go if Congress will let it. The Trump administration’s unclassified March 12th update to the legal and policy framework report for the use of military force (required by last year’s defense authorization bill), claims that the 2002 Iraq AUMF gives the administration the authority to use force in Syria, against ISIS, in 2018.  As the Trump administration’s memo explains, the 2002 AUMF’s naively broad language authorizing the president to use necessary and appropriate force to “defend the national security of the United States against the continuing threat posed by Iraq” and the lack of any geographic limit has allowed the executive branch to use this authorization to justify a new war in a different country against a different enemy nearly 17 years later.

But what has most enabled this kind of distortion of Congress’ intent is the lack of an expiration date in either the 2001 or 2002 AUMF. As I explained in recent testimony before Congress on the importance of including clear limits in any new AUMF, a sunset provision “sets a timetable for ensuring continued congressional approval and oversight as the conflict evolves, providing a safeguard against perpetual armed conflict or overly expansive executive interpretations.” An expiration date does not (at 1:36-1:38), as some absurdly claim, mark when a particular conflict will actually end—something that can’t be predicted in advance—or signal to our enemies that the U.S. will pack up and go home on a certain date. As former Department of Defense General Counsel Stephen Preston has explained, expiration dates do not signal to the enemy that “we’re not committed to the fight but rather that we are committed to our democratic institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight.”

Despite these hard lessons over 17 years of expanding war and eroding Congressional control over a power assigned to it in the Constitution, Senate Foreign Relations Committee chair Bob Corker (R-TN.) plans to unveil a new war authorization that would repeat these same mistakes and then some. Senator Corker announced earlier this week that he plans to release the text of his proposed new war authorization tomorrow. But we already have a pretty good sense, based on what’s been reported for months, that his proposal will not only sanction the executive branch’s 17 years of unilateral expansions, it will provide no new constraints and give this and future administrations a blank check to continue even broader expansions indefinitely.

In addition to the contours of Senator Corker’s proposal reported in Politico and The Hill, the above photo shows the bulleted outline of the bill as it’s being sold to offices that don’t want to set any limits on executive power and indeed want to pass off the hard decision about whether to use military force against future threats to the President. As these bullets note, the idea behind Corker’s proposal is to:

1) Sanction the use of force against all groups that the executive branch has already started using force against (whether or not those groups reasonably fall within the scope of the 2001 or 2002 AUMFs) with no operational limits (i.e., no restrictions on the use of ground troops, which has been a redline for many members of Congress on both sides of the aisle);

2) Cede Congress’ power to decide whether military force is warranted against new groups in the future to the president but provide a fig leaf of Congressional involvement by requiring the President to let Congress know when he gives himself authority to go to war with new groups. This “gives” Congress, as Corker noted on the floor last week, the opportunity to “weigh in” by providing expedited procedures to vote down the President’s decision. But, of course, any such vote would have to pass with a veto-proof majority to stop any such expansions by the President.

3) Authorize the use of military force with no geographic constraints, again subject only to reporting that is already required by statute and to a fairly meaningless opportunity for Congress to “weigh in” after an expansion as already occurred. Combined with the lack of any ground troops limitations and this administration’s lack of concern for providing an international legal basis for using force in or against sovereign nations (sovereignty constraints that provided some meaningful geographic limits during the last administration), this is a permission slip from Congress for President Trump to embark on a new ground war in any nation where ISIS or an alleged “associated force” or “successor entity” of ISIS or any other group named in the authorization can be found.

4) Authorize the use of military force with no expiration date, with a fig leaf of Congressional control by requiring a report from the President every four years and expedited procedures for Congress to once again “weigh in” and make changes if it can get a veto-proof supermajority. Otherwise, the new expanded authorization with authority for continued expansion remains in place indefinitely.

Why would members fall for this?

Given the history of the 2001 and 2002 AUMFs, why would members of Congress fall for making the same mistake all over again, but this time with express permission for the executive branch to expand to new wars in the future without a vote from Congress? The answer is that many won’t make this mistake. But some will because they believe that Congress doing something, anything, is better than the status quo of letting the executive branch continue to stretch existing AUMFs without Congress acting.

To my mind, there would be something to that if the new proposal on the table actual was better in some way than the status quo. But sanctioning actions that currently rest on uncertain interpretations of existing AUMFs is not the status quo—that’s an affirmative approval of all of those expansions. That approval with have significant consequences for detainee litigation and Trump’s ability to make good on his promise to fill up Guantanamo with a bunch of “bad dudes.” Moreover, Corker’s approval does not just authorize status quo operations—it provides authority to expand even further. Right now, the executive branch can get away with expanding to associated forces of those responsible for 9/11. But under Corker’s new proposal, the executive branch will have authority to expand in the future to associated forces of all of the current associated forces that are named in the new authorization, including associated forces of and successor entities of ISIS. To actually make improvements in the status quo, any new authorization should have clearly defined limits, including an expiration date and Congressional control over future expansions. If the president believes that military force is warranted against new groups or in new countries in the future, he should have to make that case to Congress and get its authorization.

Some might also be inclined to support Corker’s broad new authorization because it would require the president to report on future expansions. But such reporting is already required, not just under the War Powers Resolution but also under Section 1264 of last year’s defense authorization bill noted above. In addition to the initial report submitted in March, the president is required to provide regular update to Congress of any changes it makes to the legal and policy framework governing military operations within 30 days. That includes any changes in the interpretation or application of existing AUMFs or Article II power to use military force. Public reporting on such expansions should also be required, but the Senate Foreign Relations Committee can pass a bill requiring additional reporting without giving the President expansive new war powers.

Bipartisan efforts to address the problematic status quo should be applauded. But without significant changes to what is reportedly in Corker’s proposal, this new authorization would achieve just the opposite.

 

About the Author(s)

Rita Siemion

International Legal Counsel at Human Rights First Follow her on Twitter (@ritasiemion).