Congressional Irresolution: Lawmakers Shirk Their Responsibility to Declare War, Or Not

Let’s face it. An “Authorization for the Use of Military Force,” even if Capitalized and Passed By Congress, lacks the resolve of a Declaration of War. It’s basically the international equivalent of those Do Not Remove Under Penalty of Law tags sewn to the bottom of new mattresses. And these days—as the U.S. continues to wage wars under an AUMF passed on Sept. 14, 2001, when less than half of the current Congress held office, that unwieldy acronym might as well stand for an Authorization to Use U.S. Military Force Forever.

The bottom line is clear: Congress is chicken. Sure, they’ll cheer the men and women waging war, and dying for their country. But when it comes to lawmakers laying their political future on the line by giving the troops the backing the founders of this country intended, they’re MIA, AWOL and DUSTWUN —duty status, whereabouts unknown.

More critically, their laissez-faire approach could stumble us into a far bigger war. On June 18, a U.S. Navy F-18 shot down a Syrian Su-22 jet, reportedly killing its pilot, shortly after it bombed U.S.-backed rebels in northern Syria. It marked the first U.S. downing of a manned aircraft since 1999, during the Balkan war. More importantly, it was the fourth time in the past month that U.S. forces have struck pro-Syrian government forces, and it generated a threat from Russia that it now considers U.S. warplanes flying over western Syria to be targets.

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This drift toward deeper involvement, unguided by Congress, led to a pair of Washington Post columns July 23 whose authors decried such sleep-walking in strikingly similar language. “The U.S. shoots down a Syrian fighter-bomber…Russia threatens to attack coalition aircraft west of the Euphrates. What is going on?” asked Charles Krauthammer. “After 16 years of continuous warfare, hundreds of thousands dead, trillions of dollars spent and greater regional instability, somebody in Washington needs to ask—before the next bombing or deployment: What is going on?” wondered Fareed Zakaria.

Nothing to see here, move on, assured the nation’s top military officer. “We are there and have legal justification under the authorization to military force,” Marine General Joseph Dunford, chairman of the Joint Chiefs of Staff, said the day after the shootdown. “We are prosecuting the campaign against ISIS, and al Qaeda, in Syria.”

Did you note that deft triple-bank shot from the General? Surely that puts to rest, once and for all, ignorant carnards about Marines’ intelligence. He justified an attack against Syrian forces by linking them to ISIS, and then stretched it even further to include al Qaeda (his uniformed legal counsel must have been beaming).

Not so fast, General. The original post-9/11 AUMF, while unrestricted in terms of geography and calendar, is limited in a key way: it only allows action against those involved in the authorizing, planning, aiding and/or carrying out the 9/11 attacks. “It is not clear that the 2001 AUMF authorizes the use of force against ISIS because ISIS did not exist, in its current form, in 2001 and was not the group that committed the 9/11 attacks,” John Bellinger, Bush’s top National Security Council lawyer, told the Senate Foreign Relations Committee the day after Dunford spoke. Bellinger should know: he watched the attacks unfold from inside the Situation Room underneath the White House.

Declaring war, or not, is only one of the ways the nation has grown more detached from its conflicts, but it is the most important. The All-Volunteer Force (no draft!), the use of private contractors (fewer troops deployed!) and borrowing money to fight (thanks Mom and Dad!) all contribute to the problem, but is congressional wimpiness that is its, um, backbone. So long as lawmakers are content to stand on the sidelines, hands in their pockets, American isn’t fully fighting its war(s), even after nearly 16 years. What’s amazing, and depressing, is that the U.S. electorate seems satisfied with this state of affairs.

That’s why it was good to see the foreign relations committee look under the AUMF rock at that June 20 hearing. Relying on the 2001 authorization “jeopardizes our nation’s principled belief in the rule of law and thereby risks the legitimacy of the institutions designed to create, carry out, and enforce such laws,” Kathleen Hicks, a top Pentagon political appointee in Obama’s Pentagon, told the committee. “The 16-year reliance on the 2001 AUMF—the longest-standing congressional authorization for the use of force in American history—suggests a failure on the part of the nation’s political leaders to execute this responsibility.”

Researchers employed by Congress have been tut-tutting their bosses’ willful irresponsibility. “The 2001 AUMF is primarily an authorization to enter into and prosecute an armed conflict against Al Qaeda and the Taliban in Afghanistan,” the Congressional Research Service noted last year (there was a second AUMF for Iraq passed in 2002). The report noted that President Bush cited the AUMF as justification for 18 military moves (including combat). President Obama used it for 19.

Presidents have stretched the original authorization beyond all recognition. And if it actually, legally, technically doesn’t fit, they contend their Article II powers granted by the Constitution allow them to wage war more or less unilaterally (while Congress doesn’t have the guts to declare war, its regular war-fighting “appropriations are quiet ways of telling the President to carry on,” four experts in the field posted on the influential (but obviously not that influential) Lawfare blog last month.

The U.S. recent theaters of war roster is like your typical suburban multiplex, or perhaps an atlas from the 18th Century. Its acknowledged military actions, beyond Afghanistan and Iraq, include Djibouti, Eritrea, Ethiopia, Georgia, the Horn of Africa, Kenya, Libya, the Philippines, Somalia, Syria, and Yemen. Hundreds of drone strikes, thousands of deaths, trillions of U.S. dollars. For good measure, the White House has tossed in on the “high seas” and unspecified work with “friends and allies around the globe.” Lest you think they overlooked some hotspot, it’s probably detailed in “a classified annex to this report.”

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Obama pushed for a new AUMF to target the Islamic State, but it foundered on Capitol Hill because of its proposed three-year timetable, the lack of geographic specifics, and a bar against “enduring offensive ground combat operations.”

But such fresh authority is needed. “A new AUMF forces Congress to weigh in publicly on the proper scope of the conflict, and to resolve disagreements on details (scope of conflict, sunset, ground troops, etc.) that can be avoided in appropriations votes,” the Lawfare bloggers noted last month. “Congress has an institution has shown no interest in taking this vote.” Given that shyness, the White House, they added, is likely to “continue its current policy of creatively—and privately—reinterpreting the AUMF as needed.”

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There is a proposal on Capitol Hill, sponsored by Senators Jeff Flake (R-Ariz.) and Tim Kaine (D-Va.) for a new AUMF that would include ISIS, but its chances of becoming law are murky. “Some members of Congress will use this debate for the singular purpose of imposing limitations on our president—it’s just a fact,” Senator Bob Corker (R-Tenn), chairman of the foreign-relations committee, said. “Others may refuse to limit a president at war in any way. That’s a fact. And that’s a wide gap to bridge.” Thanks for stepping up to the plate, Congress.

The ranking Democrat on the panel, Ben Cardin of Maryland, said at the hearing that Congress is guilty of “an evasion of our responsibility to the American people to ensure that the United States does not stumble into war.”

Just as vile, he suggested, congressional inaction “is a failure of our commitment to our brave servicemen and women, when we do not clearly define the battle, and the objectives, for which they must fight and risk their lives.” Amazingly, absent a new AUMF, come next summer, we’ll be sending troops to fight—and die—under authority granted before they were born.