Congress Will Rubber-Stamp Whatever War Powers Donald Trump Wants
Senators and representatives say they want to scrutinize the White House’s use of the military, but don’t kid yourself.
Since 9/11, three U.S. presidents have been allowed to threaten or use military force with few checks or balances from Congress and the courts and with hardly any sustained media coverage. Each president has relied on the 2001 Authorization for the Use of Military Force (AUMF) as the domestic legal basis for these operations, which passed both houses of Congress three days after 9/11 — with just one member, Rep. Barbara Lee, voting against it. Four days later, President George W. Bush signed the bill into law. (Although now largely forgotten, that same day Bush also signed a series of covert findings that have authorized CIA paramilitary activities ever since.)
The AUMF authorizes all “necessary and appropriate force” against “those nations, organizations, or persons” involved specifically with the 9/11 terrorist attacks. But the Bush, Barack Obama, and Donald Trump administrations have used it as the legal basis for military activities (including ground combat operations, airstrikes, detention of enemy combatants, and training missions) at least 38 times in 14 different countries. Most recently, on June 6 President Trump used authority granted by the AUMF to justify the continued deployment of forces to the U.S. naval base in Guantánamo Bay, Cuba. The only major use of force since 9/11 not covered under the AUMF was the 2011 Libya regime change intervention, for which the Obama Office of Legal Counsel concluded that “congressional approval was not constitutionally required,” because the operations served “sufficiently important national interests” and were not expected to reach the level of “war.”
Since casting her lone “no” vote in 2001, Rep. Lee has made at least seven attempts to repeal, or “sunset,” the AUMF. Each attempt died in the House Committee on Foreign Affairs or, in the case of her 2016 amendment to the defense authorization bill, failed in a vote on the House floor. This year, on June 29, Lee offered an amendment to the House defense appropriations bill that was approved by a full committee voice vote. The amendment would repeal the AUMF 240 days after the appropriations bill is signed into law and would apply to “each operation or other action that is being carried out pursuant to the Authorization for Use of Military Force initiated before such effective date.”
Over the next few weeks, consideration of the appropriations bill, which now includes the Lee amendment — combined with related legislation introduced by Sens. Tim Kaine and Jeff Flake — could finally force a serious debate about the AUMF on Capitol Hill. Of course, there are many ways that Congress could drop Lee’s amendment from the appropriations bill without much debate, but given the mounting pressure, it’s unlikely that the provision could be killed at this point without attracting controversy.
So a long overdue debate about the 2001 AUMF will likely happen. But it’s unlikely to lead to the law’s repeal or even be substantive enough to have any impact on ongoing or planned military deployments. The reason is simple: Members of Congress are overwhelmingly inclined to support or tolerate whatever legal and policy justifications presidents and their advisors have provided for the use of force. Congress may say it wants to judge AUMF on the merits, but in practice it prefers to outsource its thinking about it to the executive branch.
A few progressive Democrats and libertarian Republicans have pointed out the absurdity of how the AUMF has been applied to militant groups that did not exist in 2001 and how it has served as a congressional endorsement of a borderless and open-ended war that officials in Washington warn will be “multigenerational.” The war against al Qaeda and affiliated groups has morphed into a war against “radical Islamic terrorism, which we will eradicate completely from the face of the Earth,” as President Trump promised soon after taking the oath of office.
Yet, once administration officials claim that their military activities are justified under the AUMF because they are essential to “protect the American people,” the vast majority of representatives and senators simply accept that claim and cease questioning the continued relevance of the 2001 law. Some on Capitol Hill believe that it would simply be too hard to craft new and narrower legislation that is both broadly supported and does not pose undue constraints on the military. Others have contended for years that, given the inability of Congress to pass government appropriation bills on time, it’s impossible to squeeze a real debate into the legislative calendar. Unsurprisingly, when I spoke last week with staffers from both the Senate and House armed services committees, I was told that revisiting the AUMF has received little attention or interest behind closed doors from members of the 115th Congress.
Furthermore, senior civilian and military officials have emphasized repeatedly that the AUMF provides them with sufficient authority and they require all the legal authorities they currently have; as Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff, noted in March: “We do assess that we have the legal authority to do what we’re doing right now.” Any effort to reduce those existing authorities, or allow them to terminate after 240 days without a new AUMF in place, would be attacked vigorously in private meetings on the Hill and in public congressional testimony by Defense Department officials.
The Pentagon actually wants a new AUMF — but only for the sake of improving morale among U.S. and allied troops. In March, the head of U.S. Central Command, Gen. Joseph Votel, said: “I do believe an updated authorization certainly would send a stronger commitment to uniformed military of our commitment and desire to support them.” Similarly, that same month, Defense Secretary James Mattis claimed: “I think it’d be a statement of the American people’s resolve if you did so,” adding, “A firm statement by the U.S. Congress would hearten our allies as well as give our troops a sense of purpose.” Finally, Dunford proclaimed in June: “My recommendation to the Congress was that they pass an authorization of use of military force.… Our men and women that are in harm’s way would see a clear and unmistakable support from the American people.” Congress, however, never presses Pentagon leadership to explain just how renewed congressional endorsement would send such positive signals. It is clear, in any case, that the military does not want its freedom of action limited in any way.
My brilliant colleague Rosa Brooks described the AUMF debates perfectly in 2015: “I’ll let you in on a little secret: notwithstanding the word ‘authorize,’ the existence or non-existence of a new AUMF will have essentially zero effect on whether the president feels empowered to bring force against [the Islamic State] or anyone else.” If Congress were truly interested in conducting rigorous oversight of ongoing military activities, it could begin doing so today. However, congressional hearings focus almost exclusively on members asking Pentagon officials if they need to buy more weapons produced in that member’s district or just thanking them for their service.
The best way Congress could thank service members would be to fulfill its constitutional role by overseeing how the armed forces are manned, trained, equipped, and operate. The recent surge in attention to AUMF reform has been in lieu of, not in line with, such desperately overdue oversight.
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