On the day of a Senate Foreign Relations Committee hearing examining a proposal to substitute one new congressional authorization to use military force for two existing AUMFs, Democratic Sen. Jeff Merkley of Oregon will announce that he plans to introduce legislation of his own as a substitute for the substitute.
The two AUMFs—one passed in 2001 for dealing with al-Qaeda just three days after the 9/11 attacks, and one passed 13 months later, which the Bush administration used as a green-light to invade Iraq—remain on the books after more than a decade and a half, providing the legal substructure for endless war.
The replacement proposal Merkley isn’t happy with was introduced in April by Republican Sens. Bob Corker, Jeff Flake, and Todd Young, and Democrats Tim Kaine and Chris Coons. It has caught a good deal of flak since it was made public a month ago. In a statement of principles released this morning, Merkley said:
“… I applaud the leadership of the Chair, Senator Kaine, and others who have pushed to renew this critical debate. The 2001 AUMF has been stretched beyond recognition by three consecutive administrations, and it is time for Congress to reassert its constitutional role in declaring war.
“However, I have fundamental concerns with the approach laid out in the AUMF the committee will be considering.
“The framers of our Constitution did not intend for the president to have unchecked powers to wage war. They gave the power to declare war to Congress, because Congress most directly represents the American families who send their sons and daughters into harm’s way when our nation makes the solemn decision to go to war. We need to restore the vision of the Constitution and make sure that Congress, not the President, has the ultimate say in the decision to send our troops into harm’s way.
Corker-Kaine has gotten moderately rough treatment from The New York Times editorial board:
While we appreciate this bipartisan effort, the measure may actually give presidents more power to decide when, where and against whom Americans can fight, by approving existing military operations that began without congressional approval, and by allowing presidents to expand that scope of action with only a minimal role by Congress. That’s a concern no matter who occupies the White House but especially when the president is as impulsive as Mr. Trump. [...]
This new reporting requirement is a step in the right direction. So is another one in the legislation, mandating that every four years Congress review the authorization and decide whether it should be continued or modified.
But over all the bill’s provisions are too broad and could bless military operations in perpetuity, not least because Congress would be unlikely to muster the two-thirds majority that would be needed to take away or alter an authorization once it is enshrined in law or is later added on by a president.
Merkley is one of several critics on the left and the libertarian right who object to how the Bush, Obama, and Trump administrations have interpreted these two resolutions in a manner that has delivered more power to the executive branch and weakened the war-making authority assigned to Congress by the Constitution and clarified in the War Powers Act of 1973.
Another critic is Democratic Rep. Barbara Lee, the only vote against the 2001 AUMF. In her view, Corker-Kaine’s constraints still would allow the executive branch way too much authority:
“Rather than reining in the Trump Administration’s blank check for war, the Corker-Kaine AUMF would continue all current military operations, allow any president to unilaterally expand our wars, and effectively consent to endless war by omitting any sunset date or geographic constraints for our ongoing operations. This legislation also further limits Congress’s role in war-making by requiring a veto-proof majority to block military action from the president.
“Over the last sixteen years, we have witnessed the consequences of unfettered executive power in matters of war. Instead of further endorsing perpetual war, we need to insist on an AUMF that is narrow, clearly defined, and respects Congress’s constitutional duty to debate and authorize military action.”
Garrett Epps, a constitutional lawyer and contributing editor at The Atlantic, writes:
Melancholy as it seems, the real division of opinion in this dispute is between those who believe the war should go on without color of law, because authorizing it will set a malign precedent for later presidential war-making, and those who believe that it is important to create a structure of law, however chimerical, around the current anti-terrorism effort—to make the point, that is, that the Constitution governs, at least formally, even in 2018. Seventeen years of semi-secret “war,” against shadowy enemies and in pursuit of classified goals, have placed our system under intolerable strain. Virtually nothing is left of “law” in this area; the only question is what legal fiction we choose to describe this apparently multi-generational conflict.
The executive, and many in Congress, seem to agree that the Constitution is now best regarded as a kind of mildly demented national great-uncle—a treasured reminder of a simpler past, but of no real relevance to what grownups do in the present day. Corker and Kaine do deserve credit for keeping at least the idea of law in the dialogue.
As in so many cases, there are more than two sides to this issue. In addition to those who prefer to continue the broad authority of the 2001 AUMF, and those who want a new AUMF with constraints but not what they view as too many constraints on the executive branch’s authority, there are also critics who say that there is no need at the moment for any AUMF.
Merkley doesn’t go so far. But if the AUMF legislation he introduces matches his statement of principles on what an AUMF should include, it would certainly represent a major improvement from the current situation. Corker-Kaine, on the other hand, goes for tweaks at the margins while effectively maintaining the status quo. One of its key flaws is lack of a sunset provision that Merkley wants to set at three years.
Here are Merkley’s principles:
1. Maintains Congress’s constitutional role in authorizing war.
The framers of the Constitution clearly vested the power to authorize war in the Congress. Any new AUMF must require Congress—the direct representatives of the American people—to authorize new military action rather that delegating this power to the President.
2. Requires congressional authorization for expanded military action.
Congressional authorization, conducted under expedited procedures, should be required for expanded action against any new terrorist group or country beyond Al Qaeda, the Taliban, and the Islamic State of Iraq and the Levant (ISIL) and beyond countries specified in a new AUMF.
3. Limits the use of U.S. ground forces.
Require explicit Congressional authorization for the introduction of U.S. ground forces into conflict.
4. Establishes a 3-year sunset.
No AUMF should authorize endless war. Congress should set a sunset date and be forced to periodically review the underlying assumptions and facts on the ground relevant to an authorization for the use of military force.
5. Adheres to international law.
Require that the United States adhere to international law, including the proportional use of force and distinguishing between combatants and civilians.
6. Requires transparency.
The executive branch must be transparent by providing critical information to Congress and the American people. That information must include outlining the objectives of our war on terrorist groups and the strategies for how they plan to address the threats; a report on the civilian casualties that result from U.S. military action; other information critical to understand the scope and impact of the conflict; and the financial costs to the U.S. taxpayers.
7. Repeals the 2001 and 2002 AUMFs.
Repealing the 2001 and 2002 AUMFs is critical. They have been stretched far beyond the direct expressed limits in the legislation and have facilitated 17 years of war. The 2002 AUMF should expire immediately and the 2001 AUMF after six months – allowing the President a six-month window to come to Congress to seek additional approvals.