After the terror in Paris, most Democrats and Republicans agree America should end the Islamic State. So one might think Congress would get around to actually declaring war against the proto-state.
This hasn’t happened. Now some lawmakers are looking to reopen this debate. Sen. Lindsey Graham, who is running for the Republican presidential nomination, said last week he would soon introduce a new war resolution against the Islamic State.
Rep. 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. Rep. Devin Nunes, the chairman of Schiff’s committee, told me he is open to a new vote on as well.
That these lawmakers are all open to declaring war is significant. Nunes and Graham, like many in their party, say the president doesn’t need special legal authority because it’s covered by the AUMF Congress passed in 2001 against the perpetrators of 9/11.
There is a certain logic to this. After all, al Qaeda created the first iteration of the Islamic State, before 2014.
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 concerned about starting new wars (like Schiff) and those 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.”
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.
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.
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. Sen. Ted Cruz told me he would support what he called a robust AUMF against the Islamic State and al Qaeda. But: “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 has tacitly consented to the president’s war, being waged in the passive voice
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