Congress and its war du­ties

The Oklahoman (Sunday) - - OPINION - Ge­orge Will georgewill@ wash­post.com

Pre­dictably and sen­si­bly, a three-judge panel of the na­tion’s sec­ond-most im­por­tant court, the U.S. Court of Ap­peals for the D.C. Cir­cuit, re­cently dis­missed, unan­i­mously, a law­suit brought by a Ye­meni man, two of whose rel­a­tives were col­lat­eral fa­tal­i­ties in a 2012 U.S. drone at­tack that killed three ter­ror­ists. The suit asked the court to de­clare the at­tacks il­le­gal un­der sev­eral U.S. statutes.

The court, how­ever, in­voked the “po­lit­i­cal ques­tion” doc­trine:

Some po­lit­i­cally charged and tech­ni­cal mat­ters are not “jus­ti­cia­ble” be­cause courts are in­ap­pro­pri­ate fo­rums for an­swer­ing them. They in­clude the wis­dom of mil­i­tary ac­tions. What was sen­si­ble but not pre­dictable was that Judge Jan­ice Rogers Brown, in ad­di­tion to writ­ing the opin­ion for the court, added a blis­ter­ing opin­ion in which she up­braided the other branches for dere­lic­tion of du­ties re­gard­ing un­fet­tered pres­i­den­tial war­mak­ing, par­tic­u­larly with pre­ci­sion-strike weapons.

“There is piti­fully lit­tle over­sight within the ex­ec­u­tive. ... (C)on­gres­sional over­sight is a joke —and a bad one at that. ... The spread of drones can­not be stopped, but the U.S. can still in­flu­ence how they are used in the global com­mu­nity ... . The ex­ec­u­tive and Congress must es­tab­lish a clear pol­icy for drone strikes and pre­cise av­enues for ac­count­abil­ity.” Brown asked: If judges will not check “this out­sized (ex­ec­u­tive) power, then who will?”

Un­for­tu­nately, in this, as in so many other ar­eas, Congress is in per­pet­ual flight from re­spon­si­bil­ity. It should be­gin by re­vis­it­ing the 2001 Autho­riza­tion for Use of Mil­i­tary Force, which was en­acted while the World Trade Cen­ter and Pen­tagon still smol­dered.

The AUMF au­tho­rized the pres­i­dent to “use all nec­es­sary and ap­pro­pri­ate force against those na­tions, or­ga­ni­za­tions, or per­sons he de­ter­mines planned, au­tho­rized, com­mit­ted, or aided the ter­ror­ist at­tacks that oc­curred on Sept. 11, 2001, or har­bored such or­ga­ni­za­tions or per­sons, in or­der to pre­vent any fu­ture acts of in­ter­na­tional ter­ror­ism against the United States by such na­tions, or­ga­ni­za­tions, or per­sons.” As Rosa Brooks, a for­mer Pen­tagon of­fi­cial and now Ge­orge­town law pro­fes­sor, crisply notes, five and three of those words es­pe­cially mat­ter.

In her si­mul­ta­ne­ously witty and dis­turb­ing book “How Ev­ery­thing Be­came War and the Mil­i­tary Be­came Ev­ery­thing” (2016), Brooks notes that the AUMF does not au­tho­rize force “against any­one, any­where, any­time” but only against those who “planned, au­tho­rized, com­mit­ted or aided” 9/11. And it au­tho­rizes force for a spe­cific pur­pose — to “pre­vent any fu­ture at­tacks” against this na­tion by such en­ti­ties, “not to pre­vent all fu­ture bad acts com­mit­ted by any­one, any­where.”

Now, some, most or all cur­rent U.S. mil­i­tary ac­tiv­i­ties might be sen­si­ble. Few, how­ever, are clearly au­tho­rized.

Sens. Jeff Flake, R-Ariz., and Tim Kaine, D-Va., have in­tro­duced leg­is­la­tion to au­tho­rize the use of force against al-Qaida, the Tal­iban and the Is­lamic State for five years. It would cre­ate a process by which pres­i­dents can des­ig­nate other rad­i­cal Is­lamic groups as “as­so­ci­ated forces” and Congress can re­ject such an ex­pan­sion of force.

Last month, the House Ap­pro­pri­a­tions Com­mit­tee voted to in­clude in a de­fense mea­sure a pro­vi­sion re­peal­ing the 16-year-old AUMF, for the pur­pose of forc­ing the writ­ing of one re­spon­sive to 2017 re­al­i­ties. Speaker Paul Ryan op­posed us­ing an ap­pro­pri­a­tions bill for this pur­pose. But Rep. Tom Cole, an eight-term Ok­la­homa Repub­li­can on the com­mit­tee, said, “I don’t know any other way to get their (the con­gres­sional lead­er­ship’s and the ad­min­is­tra­tion’s) at­ten­tion be­cause we’ve been talk­ing about it for years.”

Congress is per­ma­nently in “An­nie” mode.

It will deal with its war re­spon­si­bil­i­ties, like its myr­iad other for­feited pow­ers, to­mor­row, which is al­ways a day away.

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