The ascendance of the Joe Biden era in Washington is giving some lawmakers renewed hope that the lopsided executive-legislative power imbalance on war and peace issues will be addressed as a top priority.
According to a January 21 report in Politico, the top Democrats on the House foreign affairs, intelligence, and rules committees have written to President Biden calling on him to work with Congress to eliminate the 2002 authorization for the use of military force (AUMF) and begin the process of paring down the 2001 AUMF that has justified every U.S. counterterrorism action since September 2001. There is some evidence the Biden administration intends to work with interested lawmakers on curtailing these resolutions.
The 2020 Democratic Party Platform states that "we will work with Congress to repeal decades-old authorizations and replace them with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”
Antony Blinken, Biden’s choice for secretary of state, made similar comments to the Senate Foreign Relations Committee during his confirmation hearing this week. “It is long past time we revise these [AUMFs] and review them in many instances,” Blinken told the committee. “It is long past time we do this and I welcome the opportunity to do that.”
“Long past time" would be the understatement of the century.
The last time members of Congress voted on an authorization for the use of military force, or AUMF, Nelly had the hottest song in America. Kiefer Sutherland’s “24” was the most popular television show in the country. President George W. Bush’s approval rating was in the 60s. And the specter of Saddam teaming up with al-Qaida to end American civilization was actually treated as plausible by respected politicians and intelligence officials in Washington.
All of which is to say that the geopolitical situation and indeed the entire world was vastly different in 2002 than it is in 2021. And yet, nearly 20 years removed from the Iraq War vote that would linger over the heads of lawmakers for years on end, the law itself is still on the books along with a 60-word authorization passed a year earlier which gives the president a near-blank check authority to use force wherever and whenever he wishes.
For the executive branch, the 2001 and 2002 AUMFs are gifts that keep on giving — invoked as legal justification for successive military actions against targets far removed from the laws’ original intent. The 2001 AUMF, crafted to provide the Bush administration with statutory authority to decimate al-Qaida and the Taliban in Afghanistan, has been cited dozens upon dozens of times across four consecutive administrations in countries as far away as the Philippines and Georgia. The entire situation is eerily reminiscent of an 18th century monarchy, where the king decides to thrust his forces into a conflict and the powerless commoners on the sidelines merely nod in agreement.
The difference, of course, is that the U.S. Congress is not a powerless, rubber-stamp body that meets every so often to put their symbolic signature on a presidential action. Far from it: it’s an independent and co-equal branch of government that, according to the U.S. Constitution, is the ultimate authority of when and where the United States goes to war.
It has taken years of executive branch overreach for lawmakers to come to grips with a disturbing reality: On debates over war and peace, Congress has essentially neutered itself. The predominant opinion on Capitol Hill is not one of skepticism of military action, but reticence of second-guessing the commander-in-chief (of course, on the perverse flip-side, Congress as an institution is more than willing to second guess a president if it means gumming up the works on getting out of a 20-year conflict).
It often takes an act of such egregiousness and stupidity to shock Congress into action. Saudi Arabia's premeditated murder of dissident writer Jamal Khashoggi in the fall of 2018 was a key motivator for the War Powers Resolution passed less than seven months later rescinding U.S. military support to the Saudi-led coalition in Yemen (Trump would quickly veto the resolution). If it weren’t for Khashoggi’s grisly killing, it’s an open question as to whether this resolution would have been debated at all.
Fortunately, there are lawmakers in the rank-of-file of both parties who care about these issues. Reps. Barbara Lee, Ro Khanna, and Matt Gaetz in the House and Sens. Rand Paul, Mike Lee, and Jeff Merkley in the Senate have been trying to educate their colleagues on the necessity of curtailing the executive’s stranglehold over war powers.
Reps. Khanna and Andy Biggs created the War Powers Caucus in June 2019 to advocate for Congress’s constitutional role in the war-making process. On some occasions, the efforts have made progress. In 2019 and 2020, the House of Representatives voted to repeal the 2002 AUMF against Iraq, both on a bipartisan basis. Last July, the House Appropriations Committee tucked a repeal of the 2002 AUMF into the defense spending bill, this time on a party-line vote. Unfortunately, none of those efforts passed the full Congress, with each attempt either killed or bottled up by Senate Republican leadership.
Most people agree on the problem. But if nobody can agree on a solution, the problem merely festers. And therein lies the real issue: cobbling together a bipartisan solution that encompasses the views of progressives, moderates, and classic interventionists on a subject as controversial as war powers has been as difficult as herding cats.
The Obama administration tried to add a sense of urgency to the issue by issuing a draft AUMF for the war against the Islamic State and encouraging Congress to revisit the original 2001 resolution. Yet the White House received resistance in the Senate almost immediately.
Proponents of AUMF reform face two main challenges: First, a general reluctance on Capitol Hill about crossing the commander-in-chief during a time of perpetual war, and second, extreme fear of taking a consequential vote.
We can talk about the details of what a replacement AUMF would look like, including how narrow what the specific objectives would be, how long the authority would last, which countries are covered, and how often the White House would be required to brief Congress on the particulars of a mission. But the sad truth is that until the atmosphere changes, it will be extraordinarily difficult for the fiercest and most committed AUMF-reform advocate to cross the finish-line.
