Waging the Long War in the Passive Voice
After the terror in Paris, most Democrats and Republicans agree that America should end the Islamic State. Even the socialist Democrat, Bernie Sanders, has called on America to lead a coalition to rid the world of this caliphate.
So one might think Congress would get around to actually declaring war against the proto-state that has terrorized France and Lebanon in the last month. So far, this hasn't happened. After President Barack Obama offered Congress in February a limited war resolution to authorize the airstrikes and special operations he ordered the previous August, Congress took a pass.
Now some lawmakers are looking to reopen this debate. Senator Lindsey Graham, who is running a long-shot bid for the Republican presidential nomination, was the first out of the gate. He said last week that he would soon introduce a new war resolution against the Islamic State.
Representative Adam Schiff, the Democratic ranking member of the House Permanent Select Committee on Intelligence, told me he too was planning on introducing a new Authorization for the Use of Military Force (AUMF) in December when Congress comes back from the Thanksgiving break. Representative Devin Nunes, the chairman of Schiff's committee, told me he is open to a new vote on such an authorization as well.
The fact that these lawmakers are all open to declaring war -- a war the U.S. has been fighting since August 2014 -- is significant. Nunes and Graham, like many in their party, say the president doesn't need special legal authority for the new campaign because it's covered by the AUMF Congress passed in 2001 against the perpetrators of 9/11. There is a certain logic to this. Obama has made this argument as well. After all, al Qaeda created the first iteration of the Islamic State, before 2014. The Islamic State's assault on soft targets in Paris used the same tactics as al Qaeda commandos against Mumbai in 2008.
Schiff on the other hand has argued the president does need a new AUMF because the Islamic State is no longer associated with al Qaeda and therefore a war against the Islamic State is no longer a response to 9/11. Indeed, today al Qaeda and the Islamic State fight one another in Syria and compete for the allegiance of jihadis all over the world.
Where Schiff and Nunes agree, however, is on the importance of having the AUMF debate now. They have a point. A new AUMF that covers the Islamic State, al Qaeda and their allies would have benefits for those in Congress concerned about starting new wars (like Schiff) and those in Congress who worry the consensus to fight terrorists overseas has collapsed (like Nunes).
For the hawks, a new war resolution could get colleagues who were not legislators in 2001 on record to support "the long war." This war is fought in Somalia, Yemen, Pakistan, Syria, Iraq and Afghanistan. Much of it is also fought in the shadows, using special operations forces, drone strikes and other kinds of intelligence actions. An open debate on all the actions the long war would entail -- from drone strikes to electronic eavesdropping -- would clarify the extraordinary powers Congress expects the president to use in order to keep the country safe. To hold the vote while the horror of Paris is still fresh in the minds of Congress is an opportunity to give this long war a political legitimacy it now lacks.
For doves, a new AUMF offers a chance for Congress to reassert its role in the war-making process. Obama has largely ignored Congress when it comes to war and peace. Obama went to war in Libya in 2011. After the fact, the House voted down a resolution to authorize that war. Even though his agreement with Iran is one of the most important diplomatic agreements of the 21st century, he opted not to submit it to the Senate as a treaty. Obama's decision to rely on the 2001 AUMF for the current war in Syria and Iraq opens the door for future presidents to stretch its meaning even further.
A new AUMF, particularly if it includes a sunset clause, would force Congress to debate the war against jihadis every few years, ensuring the long war does not become a permanent war.
So far, Congress has been too divided on exactly what it wants this war to be. When Obama presented his AUMF in February, Congress couldn't agree on key questions like the war's duration, scope and ground troops. But this was largely what Harvard Law professor Jack Goldsmith has called a "faux debate." Obama never proposed scrapping the 2001 AUMF, which already gave him and his successors broad authorities to wage a war on terror with no temporal or geographic limit. Nor did Obama's AUMF limit his Article II constitutional authority as commander in chief of the military. Goldsmith says the safest course would be to use the 2001 AUMF as a model, but include the Islamic State in addition to al Qaeda.
Some in Congress are wary of reopening the debate. Senator Ted Cruz told me he would support what he called a robust AUMF against the Islamic State and al Qaeda. But he also said it was up to the president to make the first move: "The burden should be on the commander in chief to convince the American people through their representatives in Congress that he has developed an anti-ISIS strategy that is sound and worthy of their support."
Cruz is right, up to a point. Obama is responsible for executing the war against the Islamic State. But Congress is responsible for declaring it. Whether this war is part of the long one that began after 9/11 should be debated and settled by a vote. Instead, Congress consents to the president's wishes by failing to exercise its constitutional duty. And the long war is waged in the passive voice.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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