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Kill bill: GOP leadership scheme could spike war powers reform

Congress looked poised to repeal two ‘zombie’ AUMFs this year, but a quiet move from Republican bigwigs could change that.

Reporting | North America

Debate over the National Defense Authorization Act is, by all accounts, exhausting to follow. Each year, lawmakers spend countless hours wrangling over the details of the must-pass military policy bill, which often stretches on for well over 1,000 pages. Hearings can last deep into the night, and early morning horse trading can often slip under the media’s radar.

This may explain why few in Washington noticed when the Rules Committee voted last month to block an amendment to this year’s NDAA that would have repealed the “zombie” congressional authorizations for the first and second Gulf Wars. The unexpected move came just a few months after a bipartisan group in the Senate voted overwhelmingly to repeal the laws, with support from the White House.

The Rules Committee vote, which happened shortly after midnight on July 13, followed a brief explanation from Chairman Tom Cole (R-La.). “We do have an assurance from the speaker that this will be dealt with in September,” Cole said. “We'd like to move it to regular order, and we'd like to have a pretty robust debate on it.”

Notably, Cole suggested that the talks could go further and include a far more consequential (and controversial) issue: the potential repeal and replacement of the 2001 AUMF, which undergirds nearly all U.S. counterterrorism operations.

This “grand bargain” approach has its fair share of skeptics. Repealing the 2002 and 1991 authorizations — both conceived to permit war with an Iraqi regime that no longer exists — has strong, bipartisan support in both chambers. Meanwhile, debate over the 2001 authorization will surely prove more divisive given divergent views in Congress about security threats in the Middle East and beyond — and whether there should be a replacement AUMF at all.

“We very much view any effort to link the 2002 repeal to the 2001 repeal by the majority as an effort to delay and undermine the prospects for the repeal of 2002,” said Eric Eikenberry of Win Without War, a progressive foreign policy group. “It's long past time to repeal this. Any effort to try to drag out the life of this AUMF is a bad faith effort.”

Eikenberry’s logic is straightforward: GOP leaders in the House, including Speaker Kevin McCarthy and Foreign Affairs Committee Chairman Michael McCaul (R-Texas), have long opposed attempts to repeal the 2002 AUMF on the grounds that it would unduly restrict the president’s ability to deal with Iranian threats. Given that the 2002 repeal would almost certainly pass on its own, the lawmakers may be trying to slow things down by throwing a far more controversial law into the mix.

McCaul’s office told RS it doesn’t have “anything to share at this time” on the talks. Speaker McCarthy’s team did not respond to a request for comment.

Details of the negotiations remain sparse, but the contours of the debate have started to emerge. Rep. Ken Buck (R-Colo.), who McCaul tasked with leading talks from the Republican side, recently told Jewish Insider that military and intelligence officials will start briefing negotiators in September on what threats they think should be covered by a new AUMF. The goal, he said, is to release a draft text by mid-December, leaving little chance that a compromise bill will pass by the end of the year.

Buck, who voted in 2021 for a clean repeal of the Iraq AUMF, said negotiators broadly agree that any replacement should expire after four or five years. But he also claimed that a replacement will not include geographic restrictions, a fact sure to draw the ire of war powers advocates, who lament the fact that the 2001 AUMF has been used to justify operations in at least 14 countries.

Another key sticking point will be the debate over what exactly warrants a military response in the Middle East today. As Eikenberry pointed out, Islamist terror groups have been dramatically weakened over the past two decades, and it’s unclear how a continued U.S. presence in the region would be necessary to keep it that way. On the other side, more hawkish members of Congress say a new AUMF is necessary to contain Iran — a country that had nothing to do with the original decisions to authorize military force.

As Heather Brandon-Smith of the Friends Committee on National Legislation noted, it’s also unclear whether a final deal could actually make it through a sharply divided Senate.

“There's a lot of uncertainty as to whether that would be acceptable to the Senate, so I just think a clean repeal is the best way to go with the 2002 AUMF,” Brandon-Smith told RS. “It wouldn't have an effect on current operations, but it would prevent future abuse, and it would rebalance the division of constitutional war powers, as the founders intended.”

At the heart of the issues is a complex constitutional question: How should lawmakers balance Congress’s fundamental power to authorize war with the operational needs of a globe-spanning, lightning-fast military?

GOP leaders have generally argued that the executive branch should have wide latitude to use the military as it sees fit in order to protect U.S. national security. Any efforts to weaken presidential war powers could tie the president’s hands in case of an attack, slowing a necessary response.

Establishment Democrats largely shared this view in the early days of the “Global War on Terror,” but in recent years most on the left have come to agree that Congress needs to claw back some of its war powers authority in order to prevent abuses. (Former President Donald Trump’s 2020 assassination of an Iranian general, which relied in part on the 2002 AUMF, supercharged this shift.) The left has found common ground on this issue with libertarians and constitutional conservatives like Sen. Rand Paul (R-Ky.) and Rep. Chip Roy (R-Texas).

But this left-libertarian alliance starts to fall apart when it comes to the 2001 authorization. While some Democrats and small government advocates support a straight repeal with a brief sunset period, others worry that such a move could undermine U.S. operations abroad. Further complicating things is the fact that President Joe Biden has signaled that any replacement of the 2001 AUMF should be similarly expansive, setting up a thorny intra-party dispute.

These concerns help explain why Rep. Jim McGovern (D-Mass.), in that Rules Committee meeting last month, told Rep. Cole that he is “skeptical” about the chances of the negotiations succeeding. “I don't feel at all comfortable with the assurances here,” McGovern said.

Cole, who publicly supports his party’s approach, was sympathetic. “The gentleman may have the privilege of saying ‘I told you so,’” he said.

House Speaker Kevin McCarthy (R-Calif.). (Shutterstock/ Consolidated News Photos)
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