Amer­ica’s unau­tho­rized wars

The Washington Post Sunday - - SUNDAY OPINION - GEORGE F. WILL georgewill@wash­

Pre­dictably and sen­si­bly, a three­judge panel of the na­tion’s se­cond-most-im­por­tant court, the U.S. Court of Ap­peals for the District of Columbia 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 . . . . Con­gres­sional 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 — in­clud­ing, some­day, seek­ing re­course should our en­e­mies turn these pow­er­ful weapons 180 de­grees to tar­get our home­land. 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 (AUMF), 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 Septem­ber 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 Univer­sity 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 acts” against this na­tion by such en­ti­ties, “not to pre­vent all fu­ture bad acts com­mit­ted by any­one, any­where.”

In Oc­to­ber, thought to be for the first time ever, a U.S. Navy ves­sel fired SM-2 in­ter­cep­tor mis­siles to de­fend it­self against a mis­sile at­tack. The at­tack came from Ye­men, where U.S. forces are in­volved — they have made more than 80 airstrikes this year and 150 oth­ers since 2012 — in that coun­try’s civil war. Most, but not all, have tar­geted alQaeda in the Ara­bian Penin­sula.

Last month, a U.S. F/A-18 shot down a Syr­ian gov­ern­ment fighter air­craft that was threat­en­ing rebel forces at­tempt­ing to over­throw the Syr­ian regime. In May, U.S. forces re­peat­edly at­tacked gov­ern­ment forces, or the gov­ern­ment’s proxy forces, in Syria. U.S. forces are oc­cu­py­ing Syr­ian ter­ri­tory. Hun­dreds of Marines are man­ning fire bases in north­ern Syria. This in­ter­ven­tion re­sem­bles a slow-mo­tion in­va­sion.

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-Qaeda, the Tal­iban and the Is­lamic State for five years. It would cre­ate a process by which pres­i­dents could des­ig­nate other rad­i­cal Is­lamist groups as “as­so­ci­ated forces” and Congress could re­ject such an ex­pan­sion of force.

Last month, the House Ap­pro­pri­a­tions Com­mit­tee voted — by voice, per­haps unan­i­mously — 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 D. Ryan (R-Wis.) op­posed us­ing an ap­pro­pri­a­tions bill for this pur­pose (al­though nowa­days the House ap­pro­pri­a­tions process is rarely used for its in­tended pur­pose — timely pas­sage of ap­pro­pri­a­tions bills). But Rep. Tom Cole, an eight-term Ok­la­homa Repub­li­can on the com­mit­tee, said, “I don’t know any other way to get [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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