Congress is giv­ing Trump more war pow­ers. Should we be scared?

Tehran Times - - INTERNATIONAL - By Rita Siemion

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 last week that he plans to re­lease the text of his pro­posed new war autho­riza­tion. 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 as­so­ciate 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.

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.

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