For five months, Democratic Virginia Senator Tim Kaine has been calling on Congress to assert itself in the war against ISIL. "The current crisis in Iraq, while serious and posing the possibility of a long-term threat to the United States, is not the kind of conflict where the president can or should act unilaterally," said Kaine in June. He and Arizona Senator John McCain, a Republican, started working together on the contours of a new Authorization of Military Force, superseding and ending the 2002 authorization passed by a spooked, pre-election Congress.
In September, Kaine released a draft of the new authorization that repealed the 2002 AUMF and would allow the administration "to use all necessary and appropriate force to participate in a campaign of airstrikes in Iraq, and if the President deems necessary, in Syria, to degrade and defeat ISIL."
The draft stayed on the table. As recently as last week, the Kaine version of the AUMF was an idea that (many) Democrats and the White House were able to ignore.
Kentucky Senator Rand Paul swooped in. He gave an interview to New York Times reporter Jeremy Peters, which was splashed on the newspaper's website with the headline "Rand Paul Calls for a Formal Declaration of War Against ISIS." Instead of a sleepy issue that the administration could sit on for a while, Paul made a new AUMF a subject of debate—on libertarian terms.
That was clear to anyone who read the resolutions. Kaine's began with some throat-clearing "Whereas-es" about ISIL terror, such as:
Whereas ISIL’s grisly execution of United States hostages, recruitment of United States citizens and others to serve as foreign fighters that threaten to return to the United States and other nations, and pledges to carry out additional acts of violence directly against the United States make it a threat of growing significance to the United States.
Paul's version started 200-odd years earlier.
Whereas President George Washington, who presided over the Constitutional Convention, lectured: ''The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.'';
Whereas James Madison, father of the Constitution, elaborated in a letter to Thomas Jefferson: ''The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.'';
Whereas James Madison wrote in his Letters of Helvidius: ''In this case, the constitution has decided what shall not be deemed an executive authority; though it may not have clearly decided in every case what shall be so deemed. The declaring of war is expressly made a legislative function.''
Unlike Kaine, Paul made no mention of specific ISIL threats against the continental United States. As he's said in many speeches, Paul saw ISIL as "a clear and present danger to United States diplomatic facilities in the region." Also, as Peters first reported, Paul's version included a sunset provision to terminate the 2001, post-9/11 Authorization of Military Force against al-Qaeda and allies, "on the date that is one year after the date of the enactment of this joint resolution."
This was important. Last year, Paul told me that most of the War on Terror's over-reaches came from "a very expansive understanding of the use of the Authorization of Force in 2001." He had been trying to get Congress to officially declare the Iraq war over, and finding very few takers. Same was true for repealing the 2001 AUMF. "I think it would have absolutely no chance of going anywhere if I were to introduce it right now," he said.
Kaine's version of the AUMF remains the one with the most potential support in Congress. Paul's, unsurprisingly, is the bolder version, the one that would separate the senators who support an unending War on Terror from the ones who want to handle foreign policy threats individually. Meanwhile, there's no AUMF far enough along in the legislative process for the White House to worry about it.
"We will continue to engage with the Congress on the elements of an AUMF to ensure that they are appropriately tailored, while still preserving the authorities the President needs to execute his counter-ISIL strategy and to respond as might be necessary to defend the United States," said National Security Council spokesman Alistair Baskey.