Pres­i­den­tial war pow­ers show no signs of chang­ing

The Washington Times Daily - - FRONT PAGE - BY SETH MCLAUGH­LIN

Pres­i­dent Obama took of­fice crit­i­ciz­ing the ex­pan­sive wars fought un­der the 2001 and 2002 au­tho­riza­tions for the use of mil­i­tary force, but over the past eight years, he has be­come at­tached to the two doc­u­ments and used them to jus­tify ex­pan­sion of U.S. mil­i­tary ac­tion around the globe.

His cam­paign to oust Libyan leader Moam­mar Gad­hafi, his halt­ing pol­icy to­ward Syria and, just last month, his ex­pan­sion of the U.S. com­mit­ment to fight­ing al-Shabab in So­ma­lia have all been ini­ti­ated un­der the le­gal cover of the 2001 AUMF aimed at pun­ish­ing al Qaeda for the Sept. 11 at­tacks.

The is­sue flew un­der the radar in the pres­i­den­tial race this year, and Pres­i­dent-elect Don­ald Trump has given no in­di­ca­tion that he plans to change course af­ter he takes the oath of of­fice next month, leav­ing mat­ters in a le­gal gray area.

A bi­par­ti­san group of law­mak­ers has long de­manded that Congress re­assert it­self and claim a say in ex­tended mil­i­tary ac­tions, but di­vi­sions have pre­vented Capi­tol Hill from set­tling on a re­place­ment — un­der­cut­ting ef­forts to re­write the ear­lier AUMFs.

Some op­po­nents have begged the courts to step in, say­ing Mr. Obama’s fight against the Is­lamic

State stretches his war pow­ers too far.

But a fed­eral dis­trict court ruled last month that Army Capt. Nathan Michael Smith lacked stand­ing to sue over the is­sue, say­ing it is a po­lit­i­cal mat­ter for the pres­i­dent and Congress to de­cide free of court scru­tiny.

David Remes, Capt. Smith’s at­tor­ney, said the rul­ing is mis­guided. He ar­gued that the law­suit aims to bring the pres­i­dent in line with the law and warned that the de­ci­sion “ef­fec­tively blocks off all chal­lenges to vi­o­la­tions of the War Pow­ers Res­o­lu­tion.”

“The War Pow­ers Res­o­lu­tion put the bur­den on the pres­i­dent to get ap­proval from Congress to wage war,” Mr. Remes told The Wash­ing­ton Times. “If no one can chal­lenge a pres­i­den­tial war — un­der­taken without the ap­proval of Congress — then we have un­lim­ited war-mak­ing power.”

Mr. Remes is pre­par­ing an ap­peal, but Jen­nifer Daskal, an as­so­ciate pro­fes­sor of law at Amer­i­can Univer­sity, told The Times that the pres­i­dent’s au­thor­ity to wage war could be chal­lenged even if Capt. Smith’s ap­peal fails.

She noted that Capt. Smith said he sup­ports the goals to fight the Is­lamic State, but if op­po­nents could re­cruit troops who had moral ob­jec­tions, they might be able to force the is­sue be­fore a judge.

“A fu­ture plain­tiff could al­lege a more con­crete in­jury, in the form of phys­i­cal or emo­tional harm or a firmly held con­sci­en­tious ob­jec­tion to join­ing the mil­i­tary ac­tion, and still have stand­ing to chal­lenge the scope of the AUMF,” Ms. Daskal said. “The Smith case specif­i­cally leaves open that pos­si­bil­ity.”

The courts have be­come the cen­ter of the de­bate thanks to in­ac­tion on Capi­tol Hill, where a lim­ited num­ber of law­mak­ers are push­ing for change and are ar­gu­ing that Mr. Obama’s ac­tion has set a dan­ger­ous prece­dent.

Sen. Tim Kaine, Vir­ginia Demo­crat, has cir­cu­lated a pe­ti­tion urg­ing vot­ers to “de­mand Congress ex­er­cise its con­sti­tu­tional duty to put a check on the pres­i­dent.”

Mr. Kaine, the Demo­cratic vice pres­i­den­tial nom­i­nee this year, also ded­i­cated his first post­elec­tion speech to the is­sue. He ar­gued that the 2001 au­tho­riza­tion that al­lowed ac­tion against the per­pe­tra­tors of the Sept. 11 ter­ror­ist at­tacks has “stretched way be­yond” its in­tended pur­pose and “is now be­ing used all over the globe against or­ga­ni­za­tions that didn’t even ex­ist when the 9/11 at­tacks oc­curred.”

“As this war has ex­panded into two-plus years — I don’t know whether that would have been the orig­i­nal ex­pec­ta­tion — with more and more of our troops risk­ing and los­ing their lives far from home, I am con­cerned and again raise some­thing I have raised of­ten on this floor: that there is a tacit agree­ment to avoid de­bat­ing this war in the one place where it ought to be de­bated, in the halls of Congress,” Mr. Kaine re­cently said on the floor of the Se­nate.

Sen. Ben Sasse, Ne­braska Repub­li­can, ap­plauded Mr. Kaine’s re­marks. Oth­ers, in­clud­ing Sen. Rand Paul, Ken­tucky Repub­li­can, and Sen. Christo­pher Mur­phy, Con­necti­cut Demo­crat, have vowed to push Congress to re­visit the is­sue.

Mr. Paul, though, said the num­ber of law­mak­ers who be­lieve in the pro­vi­sion of the Con­sti­tu­tion is lim­ited.

“There are a few of us that be­lieve we should au­tho­rize war, and the vast ma­jor­ity ei­ther don’t care or sim­ply think it is messy so they don’t want to get in­volved,” he said, ad­ding that law­mak­ers can­not agree on what a re­worked AUMF would look like.

Mr. Obama of­fered a plan for mil­i­tary ac­tion against the Is­lamic State in 2015 that would have scrapped the 2001 and 2001 au­tho­riza­tions and sun­set af­ter three years.

But Repub­li­cans felt the plan was too re­stric­tive, while Democrats wor­ried it was too broad and would lead to an­other war in the Mid­dle East.

Mr. Mur­phy said it is hard to imag­ine the next Congress hav­ing more in­ter­est in the de­bate.

“That is a nee­dle that we should thread, but it is very dif­fi­cult to thread, and it is hard to fig­ure out how this new ad­min­is­tra­tion is go­ing to be able to do some­thing that the Obama ad­min­is­tra­tion couldn’t,” Mr. Mur­phy said. “I am go­ing to ar­gue loudly for an AUMF, but I am also sober about the prospects given Trump’s lack of in­ter­est in this sub­ject.”

ASSOCIATED PRESS

Libyan leader Moam­mar Gad­hafi was ousted in 2011 dur­ing a cam­paign that Pres­i­dent Obama be­gan un­der the le­gal cover of the au­tho­riza­tion for use of mil­i­tary force, jus­ti­fy­ing ex­pan­sion of mil­i­tary ac­tion.

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