Flake’s push gains steam for authorization of war vs. ISIS

“We have been illegally at war for a long time now.” SEN. RAND PAUL, R-KY. SPEAKING AT THE SENATE FOREIGN RELATIONS COMMITTEE HEARING ON POTENTIAL NEW AUTHORIZATION FOR THE USE OF MILITARY FORCE AGAINST ISIS IN SYRIA AND OTHER COUNTRIES

On June 18, a U.S. Super Hornet fighter blasted a Syrian aircraft out of the sky after it bombed U.S.supported rebels battling Islamic State militants near Raqqa, Syria.

Joseph Dunford, chairman of the Joint Chiefs of Staff, subsequently said the dogfight with one of Syrian President Bashar Assad’s planes was authorized by Congress in 2001 and 2002, when lawmakers authorized the use of military force against al-Qaida terrorists after the 9/11 attacks and against Saddam Hussein’s Iraq.

President Donald Trump’s administration, just as President Barack Obama’s administration did before it, is conducting a military campaign against the Islamic State, or ISIS, under 15- and 16year-old war resolutions that some members of Congress say are long-outdated and no longer reflect the current state of the war on terror.

Sens. Jeff Flake, R-Ariz., and Tim Kaine, D-Va., have been working on a new bipartisan authorization for use of military force, or AUMF, that better reflects the reality of what’s going on in Syria, Iraq, Afghanistan, Yemen, Libya and Somalia.

“I was in Congress in 2001, and I voted for the 9/11 AUMF to authorize military action against Osama bin Laden and alQaida and their allies, including the Taliban,” Sen. Tom Udall, D-N.M., said Tuesday during a Senate Foreign Relations Committee hearing on the topic. “I would have never imagined that vote supporting U.S. troops in Syria in 2017 in engagements with the Assad regime. And I don’t think anyone else did, either.”

Flake argues that Congress, which has the power to declare war, is shirking its constitutional responsibility by refusing to engage on a new war resolution. He pointed out that more than 300 members of the House of Representatives weren’t around when Congress voted for the AUMF and only 23 current senators were there.

The AUMF approved after the Sept. 11, 2001, terrorist attacks on the World Trade Center and the Pentagon has been used to authorize combat against the Islamic State because the group is considered an associated force of al-Qaida.

At Tuesday’s hearing, there was wide agreement on the need for a revised war authorization among members of the Foreign Relations Committee, which could move ahead with Flake and Kaine’s proposal as early as this summer.

“You have the Defense secretary, you’ve got the head of the NSC (National Security Council), everybody has said it’s time,” Flake told The Arizona Republic. “It’s past time, so there’s no good argument for not doing it. The question is, how do you structure it in a way that gives Congress a role that doesn’t needlessly or unnecessarily restrict the president’s authority? I think we can do that.”

Sen. Rand Paul, R-Ky., emphasized that the initiation of war is a congressional duty, not the president’s, and agreed with Flake and Kaine that Congress needs to act. But he was pessimistic that such action would have much impact on any U.S. military interventions.

“We have been illegally at war for a long time now,” Paul said at the Foreign Relations hearing.

Paul said he wouldn’t support a resolution that doesn’t limit the president’s power and “just gives a rubber stamp to what we’re doing” around the world.

“Just the Islamic State is in 32 countries right now. You add in Taliban and you add in al-Qaida, we’re probably (talking about) at least 50 or 60 countries,” Paul said. “I’m not voting to go to war in 50 or 60 countries.”

John Bellinger helped write the 2001 and 2002 AUMFs while legal adviser to the National Security Council. He told the Foreign Relations Committee that a new AUMF is needed to cover the newer terrorist organizations such as the Islamic State, which didn’t exist in 2001 and didn’t emerge as a threat until more than 10 years later.

Likewise, Bellinger suggested it’s a stretch for the Trump administration to claim that the 2001 AUMF would legally justify the Navy F/A-18E Super Hornet’s downing of the Syrian Su-22 aircraft, although he said the president conceivably could claim that, as commander-in-chief, he had the authority under Article II of the Constitution.

Bellinger further warned of “potential legal infirmity” that could by exposed by a detained ISIS militant who argues in court that the military campaign against the Islamic State was never properly authorized by Congress.

“An updated AUMF is legally necessary to ensure that our military has clear authorization from Congress to use force against terrorist groups engaged in hostilities against the United States and to ensure that U.S. detention operations withstand legal challenges in U.S. courts,” he said.

Nowicki is The Republic’s national political reporter. Follow him on Twitter, @dannowicki.