Sen­a­tors eye Iran in new pres­i­den­tial war pow­ers

The Washington Times Daily - - FRONT PAGE - BY BEN WOLF­GANG

The Pen­tagon’s abil­ity to carry the fight to the Is­lamic State, al Qaeda and other ter­ror­ist groups around the world was on the line Wed­nes­day as a key Se­nate com­mit­tee strug­gled to de­fine — and pos­si­bly limit — Pres­i­dent Trump’s le­gal au­thor­ity to wage war.

While vir­tu­ally all law­mak­ers agree that a new Au­tho­riza­tion for Use of Mil­i­tary Force is necessary and that the 2001 and 2002 ver­sions now in place are hope­lessly out­dated, there is far less of a con­sen­sus on what the leg­is­la­tion should look like and how much lat­i­tude to give the pres­i­dent.

Some Democrats raised the no­tion that the White House could twist the Se­nate’s broad bill into a green light for at­tacks against Iran, though Trump of­fi­cials dis­missed the idea as lu­di­crous.

“I do think the ques­tion here is that, yes, we will au­tho­rize the war against th­ese en­ti­ties, but we’re also go­ing to au­tho­rize war against un­fore­seen ac­tors,” said Sen. Robert Me­nen­dez of New Jer­sey, the rank­ing Demo­crat on the For­eign Re­la­tions Com­mit­tee.

Mr. Me­nen­dez also ex­plic­itly asked whether the lat­est au­tho­riza­tion could be ex­panded to in­clude Iran, which is widely con­sid­ered to be one of the world’s lead­ing state sponsors of ter­ror­ism.

“I think that there is a real dan­ger of the kind cre­ative ex­ec­u­tive branch lawyer­ing … that could use that def­i­ni­tion for us­ing force in sit­u­a­tions like that,” said Rita Siemion, a Ge­orge­town Uni­ver­sity law pro­fes­sor and coun­sel at the ad­vo­cacy group Hu­man Rights First who tes­ti­fied be­fore the com­mit­tee Wed­nes­day.

Sen. Bob Corker, Ten­nessee Repub­li­can and com­mit­tee chair­man, dis­missed that ar­gu­ment as a “red her­ring” per­pe­trated by lib­eral groups try­ing to un­der­mine his panel’s work.

An ad­min­is­tra­tion of­fi­cial told The Wash­ing­ton Times later Wed­nes­day that us­ing the pro­posed AUMF for at­tacks in­side Iran “is not even on the play­ing field we’re work­ing on” and that the White House is fo­cused solely on le­gal pow­ers to fight the Is­lamic State, al Qaeda and other ter­ror­ist or­ga­ni­za­tions that pose di­rect threats to Amer­i­can cit­i­zens and in­ter­ests.

The pro­posal, spon­sored by Mr. Corker, Sen. Tim Kaine, Vir­ginia Demo­crat, and oth­ers, would give the pres­i­dent ex­plicit au­thor­ity to wage war on “the Tal­iban, al Qaeda, the Is­lamic State in Iraq and Syria, and the des­ig­nated as­so­ci­ated forces.” Those as­so­ci­ated forces in­clude al Qaeda in the Ara­bian Penin­sula and al-Shabab.

De­fense Sec­re­tary James Mat­tis said the mil­i­tary would ben­e­fit greatly from a fresh con­gres­sional au­tho­riza­tion for ac­tion against those groups.

The bill also lists Afghanistan, Iraq, Syria, So­ma­lia, Ye­men and Libya as coun­tries in which the pres­i­dent is ex­plic­itly au­tho­rized to use force. Some law­mak­ers, though, ar­gue that the text could be in­ter­preted eas­ily to al­low strikes else­where.

One case is Iran, which has ties to some of the ter­ror­ist groups listed in the bill. The White House could pro­vide a le­gal ar­gu­ment for tar­get­ing those groups in­side Iran.

If the pres­i­dent ex­tended mil­i­tary ac­tion be­yond the six spe­cific na­tions listed, then Congress would have the au­thor­ity un­der the leg­is­la­tion to retroac­tively dis­ap­prove those strikes and stop them from con­tin­u­ing. Crit­ics say the sys­tem would be fool­ish at best and bla­tantly un­con­sti­tu­tional at worst. The pres­i­dent would veto any vote of dis­ap­proval, so stop­ping the mil­i­tary ac­tion would take a su­per­ma­jor­ity in Congress.

“The only way we can stop him … is to have a two-thirds vote. We have com­pletely flipped the Con­sti­tu­tion on its head,” said Sen. Rand Paul, Ken­tucky Repub­li­can. “I can­not more strongly ob­ject to do­ing this. This will be an un­con­sti­tu­tional del­e­ga­tion of au­thor­ity to the pres­i­dent with­out ques­tion.”

Con­cern about pres­i­den­tial over­reach has some ba­sis. Law­mak­ers agree that the cur­rent AUMFs have been stretched far be­yond their orig­i­nal pur­poses and that it’s vir­tu­ally im­pos­si­ble to know how a future pres­i­dent might in­ter­pret a new ver­sion.

The 2001 AUMF, passed in the im­me­di­ate af­ter­math of the Sept. 11 ter­ror­ist at­tacks, pro­vided the le­gal ba­sis for Amer­i­can in­ter­ven­tion in Afghanistan. An AUMF passed in 2002 set the stage for the Iraq War.

Since then, Congress hasn’t weighed in with ex­plicit au­thor­ity.

Pres­i­dent Obama re­lied on the ex­ist­ing AUMFs in his sec­ond term to jus­tify strikes against the Is­lamic State in Syria and to de­tain Is­lamic State fight­ers.

“The cur­rent AUMF is nearly 17 years old. … There’s also a grow­ing risk that the fur­ther we get from the Sept. 11, 2001, at­tacks that the courts could call into ques­tion or limit the ex­ist­ing au­tho­riza­tion,” said Mr. Corker, con­ced­ing that claim­ing power to fight the Is­lamic State took “some le­gal stretch­ing.”

In 2015, Mr. Obama tried to get an up­dated AUMF, but a bill failed to clear Congress.

The pro­posed leg­is­la­tion calls for a qua­dren­nial re­view that, in the­ory, would al­low Congress to up­date the lists of coun­tries and groups. It con­tains no sun­set pro­vi­sion, al­low­ing the mea­sure to re­main in ef­fect in­def­i­nitely.

“We’re at log­ger­heads here,” said Sen. Ben­jamin L. Cardin, Mary­land Demo­crat. “I don’t know any other way than a sun­set [pro­vi­sion] in order to pre­serve the rights to our con­sti­tu­tional pro­tec­tions.”

The bill ap­pears likely to pass the For­eign Re­la­tions Com­mit­tee, though its prospects in the full Se­nate are un­clear.

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