One congressional war authorization shouldn’t last for decades

Between multiple hurricanes, a surprise debt deal, impending tax reform, and end-of-the-year legislative deadlines, you’d be forgiven for not noticing that the Senate kicked off consideration of the National Defense Authorization Act (NDAA) this week.

Another thing you might have overlooked? The United States is still at war.

That’s the point Sen. Rand Paul (R-Ky.) tried to raise last week with an amendment to the NDAA. By engaging in military conflicts in no fewer than seven countries around the world, America remains at war, and without the authorization of Congress.

{mosads}Following 9/11, President Bush requested and Congress passed an authorization for the use of military force (AUMF), which provided legal authority for the president to use force against groups and countries that supported those terrorist attacks. The following year, Congress passed the 2002 AUMF to authorize military action in Iraq. Both AUMFs have been misconstrued as blanket authority for presidents to take military action wherever and whenever they deemed necessary — without the consent of Congress. This problem is exacerbated by the fact that both AUMFs are outdated and insufficient to authorize action against most threats the U.S. faces today.

Al Qaeda and the Taliban, against which the 2001 AUMF was largely drafted, barely exist anymore, having been routed by the U.S. and allied forces. The official war in Iraq ended years ago. But that didn’t stop President Obama from relying on both AUMFs to authorize a NATO force into Libya, combat action in Syria, and countless drone strikes. Nor has it stopped President Trump from authorizing drone strikes in Syria, Iraq, Yemen, Somalia, Libya, and Afghanistan.

The 2001 authorization, in particular, has been used more than 37 times in 14 different countries to justify military action by three different administrations.

The point is not that these actions aren’t necessary or even justified in their own right, although there’s a strong case to be made in many cases. Rather, at issue is that the Constitution requires Congress to authorize military action, and the 2001 and 2002 AUMFs do not suffice for this.

Interestingly, Congress foresaw exactly this in 2001. President Bush asked for wide latitude in his request to Congress, specifically for authority “to deter and preempt any future acts of terrorism or aggression against the United States.” Congress refused to grant it precisely because they wanted future presidents to return to Congress to authorize further military initiatives.

As Sen. John McCain (R-Ariz.) put it at the time, the goal of the 2001 AUMF was to avoid another Tonkin Gulf Resolution — a reference to the broad authority Congress gave President Johnson to initiate military measures in southeast Asia, which ultimately mired the U.S. in the Vietnam conflict for years.

In raising this issue in the Senate, Paul made a critical effort to return the constitutional role of war-making to the people. As George Washington wrote in 1793, “The Constitution vests the power of declaring war in Congress: therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”

By sunsetting both the 2001 and 2002 AUMFs within six months, Paul’s amendment sought to force Congress to do as George Washington proposed — deliberate and authorize. What’s shocking is that it took Paul’s amendment to make the full Congress debate the prudence of ongoing military options for the first time in 15 years. 

That the Paul amendment was tabled is testament to just how comfortable Congress has become ceding their war-making authority to an unchecked executive. Members would rather avoid a controversial vote, prioritizing politics over performing their most solemn duty: to debate and vote on war. This is not what the founders intended, nor what the American people support.

The American military has been sent to risk their lives in countries all over the world without the necessary authorization from Congress. It is incumbent upon Congress to take this authority back. They must do so not just on behalf of the balance of powers and representation of the people, but for the millions of lives at stake, both at home and abroad.

Rachel Bovard (@RachelBovard) is a fellow at Defense Priorities and senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.