Congress, White House Play Hot Potato With War Authority

No matter who’s running Capitol Hill, lawmakers always want to be consulted when a president is considering taking military action — until it’s politically inconvenient for them.

In August, when Barack Obama’s administration launched initial airstrikes against Islamic State targets in Iraq, the lips of Washington legislators were zipped. Now, as the White House contemplates expanding its campaign into Syria, the politics of war are coming into stark relief: Capitol Hill finds it easier to criticize a lack of executive action rather than actually voting on authorizing the use of force.

The spread of the Islamic State (also called ISIS) from Syria into Iraq and its significant territorial gains there have focused attention on a group that many analysts now view as more dangerous than al Qaeda. The executions of two American journalists further heightened calls to confront the Islamist extremists, roll back their gains in Iraq — and strike them in their Syrian home base.

Many of those calls have come from Congress, but they remain maddeningly vague and mostly aimed at scoring political points. "But if he’s going after ISIS … I think he would have to provide a war powers notification to the Congress," House Speaker John Boehner (R-Ohio) said last week, according to the Daily Caller. "And then it would be up to the House to make a decision about whether we dealt with the issue or not," Boehner added.

Boehner’s statement acknowledges the reality that not everyone in the House wants to go on the record about military action against the Islamic State so close to Election Day. In a phone call with Foreign Policy on Sept. 5, Rep. Ron Kind (D-Wis.) acknowledged that even though Congress should sign off on further military action against the group, two months before midterm elections there’s not "a big appetite" for a vote among his House colleagues.

With that in mind, it’s highly unlikely that Congress will vote on U.S. military action in Syria against Islamic State militants before recessing as early as Sept. 19 to campaign for the Nov. 4 elections.

Unless, of course, the White House tries to secure political cover for an unpopular operation — as it did with its failed attempt to launch retaliatory airstrikes against Syrian President Bashar al-Assad. When Obama floated that prospect last year, Congress erupted in criticism, and it quickly became clear that a vote to authorize the use of military force against Assad was bound to fail.

A last-minute proposal by Russia to eliminate Assad’s stockpile of chemical weapons saved Obama from losing face before Congress — and saved lawmakers from having to take a tough vote.

Still, it remains highly unlikely that the White House will once again try to secure outright congressional authorization for military force. Rather, the White House appears to be pursuing a more subtle strategy with Congress, securing financing for a $5 billion counterterrorism fund, part of which will be directed toward the government’s efforts fighting militants, including in Syria.

Several member of Congress have latched onto the president’s comment from late August that he doesn’t "have a strategy yet" to attack his cautious efforts in Iraq and Syria. So far, not many members are stepping up and calling on Obama to ask Congress for permission.

No matter, Obama says he doesn’t need it. "I’m confident that I have the authorization that I need to protect the American people," Obama told NBC’s Chuck Todd on Sunday. "I do think it’s important for Congress to understand what the plan is, to have buy-in, to debate it."

Congress returned from recess on Monday, Sept. 8, and Obama will meet with leaders Tuesday to discuss a course of action to address the Islamic State in Syria. He will then outline a plan in a national address on Wednesday.

That debate is now playing out among rival members of Congress. On Sunday, Sen. Ted Cruz, a Texas Republican and a presidential hopeful, said that he supports military action against Islamic State militants but that it would require congressional authorization. Other, more hawkish members of his party contend that Obama already has the authority. "I do believe the president has the constitutional authority to take action now in Iraq and in Syria against ISIS," Rep. Peter King (R-N.Y.), told ABC’s This Week on Sunday. "I believe as a matter of course, it’s probably better for him to get congressional approval, but I — which I would certainly vote for. But I don’t believe he needs it."

The president’s military authority was vastly expanded in 2001, when Congress passed the "Authorization for Use of Military Force" (AUMF) resolution, which handed the president broad authority to retaliate against those responsible for the 9/11 attacks. It also served to protect Congress politically by exempting the body from having to take a stance one way or another on individual operations.

That joint resolution took only four days to pass, but included significant push-and-pull between George W. Bush’s administration and a Republican-led Congress that refused to launch a "war on terrorism." It was Bush who eventually conceded, and the legislation became the legal framework for counterterrorism efforts over the next decade.

Both Bush and Obama administration lawyers interpreted the AUMF as granting broad leeway to conduct counterterrorism operations around the world, but so far it hasn’t been used against the Islamic State. The administration says it intervened in Iraq at the request of the Iraqi government and is carrying out strikes there for humanitarian reasons and to protect U.S. personnel. Administration officials are wrangling with a possible legal rationale for striking Syria, and Obama has hinted that he may rely on the self-defense justification.

There are now competing bills in Congress to determine the president’s legal authority to hit the Islamic State. On July 25, the House passed legislation authored by Rep. Jim McGovern (D-Mass.) prohibiting the president from deploying or maintaining a sustained combat role in Iraq without specific congressional authorization. But that bill was written well before the first round of airstrikes and the beheading of two captive Americans. Some Republicans are now fighting for a bill that would actually expand, not rein in, a president’s wartime authority.

The 1973 War Powers Resolution grants the president 60 days — with the possibility of a 30-day extension — to carry out military operations before seeking approval from Congress. Obama has been regularly notifying legislators under the terms of that resolution, but it has now been 84 days since Obama first notified Congress on June 16 that he was deploying U.S. forces to Iraq. In the past 30 days, there have been roughly 130 airstrikes and military operations there, which show little sign of slowing.

Here, Obama’s recent history using force is instructive. In February and March of 2011, with rebel forces fighting to depose Muammar al-Qaddafi, Obama weighed intervening in Libya. Members of Congress used the moment to score a predictable set of political points. Republicans (mostly) howled for intervention; Democrats (mostly) pleaded to keep U.S. troops out of it. Helped along by his European allies, Obama circumvented his critics on Capitol Hill and backed a no-fly zone authorized by the U.N. Security Council.

With the exception of the AUMF and the 2002 vote to use military force against Iraq, Congress has had few opportunities to sign off on military campaigns. Prior to Sept. 11, 2001, the most recent vote supporting a president’s use of military force came during George H.W. Bush’s administration in 1991 when, after initial resistance from Democrats, the Democratic-led Congress supported what became the Gulf War.

That vote was Congress’s most direct authorization of military action since the Gulf of Tonkin Resolution of 1964.

John Hudson contributed reporting to this article.