Congress And War Making

It gets a little wearying writing about how Congress is derelict in its duties and must assert its proper constitutional role, but there may be no area where Congress is as deficient as it is when it comes to foreign policy.

Kevin Williamson says it’s time to repeal the Iraq Authorization for Use of Military Force (AUMF), and I’m inclined to agree.

Congress has the power to remove any ambiguity in this matter, and it should.

The Iraq AUMF has been on the books since 2002, when it was enacted to empower the administration of George W. Bush to depose Iraqi dictator Saddam Hussein, who is long gone. It is supplemented by an earlier AUMF, passed shortly after 9/11, which authorized the U.S. government to go after those responsible for the attacks of that day and any “associated forces.” But the version of al-Qaeda responsible for 9/11 is long gone, too, even if the name lives on. Also gone is the principal actor behind the attack, Osama bin Laden, killed by U.S. forces and buried at sea. Conversely, the Tehran-backed militias (Kata’ib Hezbollah et al.) causing havoc in Iraq today — and killing Americans in the process — did not exist in 2001 or 2002. And if either AUMF was meant to include the Iranian state, then that certainly was not made explicit in the relevant texts.

That’s not to say they should be repealed and replaced with nothing.

We should forthrightly admit that the 2001 and 2002 authorizations have outlived their rationales, that both the organization behind 9/11 and the troublemaking regime of Saddam Hussein have been eliminated — mission accomplished, at last. But Saddam Hussein and Osama bin Laden were not the only threats in the world, nor the only threats emanating from the Middle East. Tehran is a problem. So is the rat’s nest of new terrorist outfits and regional militias that have sprung up after the vanquishing of al-Qaeda. The use of the 2001 and 2002 authorizations in the current military and political context is obviously pretextual, the barest little fig leaf to cover up the fact that Congress has abandoned its duties in the matter of war-making, delegating them to an increasingly imperial presidency.

. . . The 2001 and 2002 authorizations have served their purposes. They are open-ended enabling acts, and they should be repealed and replaced — if they must be replaced — with an instrument that is much more narrowly tailored and takes into account the current political and security realities, which are not what they were nearly 20 years ago. If the Democrats really believe that Donald Trump is a uniquely dangerous threat in the White House — morally unmoored and psychologically unstable, as many of them charge — then they should act on that belief and begin the process of tying his hands.

The foreign policy framework under which we operate is miles beyond what is prescribed by the constitution. But what’s frustrating is that it has been enabled by an act intended to rein in the imperial presidency. I am perhaps a minority of one on this, but I believe the War Powers Act is unconstitutional not because it strips too much power from the president, but rather it affords him too much. The idea that the president gets a 60-day free trial for war is a constitutional absurdity (kudos to David French and Sarah Isgur for coming up with that analogy on their podcast). In fact the WPA is constitutionally backwards because it allots to much power to the president in what should be a primarily Congressional function – declaring and making war – and then gives too much power to Congress in what should be a primarily Executive function – conducting war.

Be that as it may, it’s time for members of Congress to stop acting like whimpering wallflowers. Some Republican members of Congress moaned when Donald Trump rearranged troops and left the Kurds vulnerable, and now Democrats are complaining about the president’s actions with regards to Iran. They all act as though they are nothing but internet commenters who have no actual power or authority to, you know, do something about it.

As for the present circumstance, I do think the current AUMF did give the president the authority to act as he did. I don’t comment on the wisdom of the attack, nor do I offer any analysis of what will happen moving forward. I do think a repeal and replace (heh) of the Iraq AUMF is warranted. It can simultaneously restrict further action by narrowing the scope of the use of the force while actually freeing our ability to act by updating it to meet current needs.

But we all know that would require Congress to do something, so I won’t hold my breath.

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