Congress's role in ending the 'forever wars'
© Getty Images

In his speech to Congress last week, President BidenJoe BidenMellman: Trump voters cling to 2020 tale FDA authorizes another batch of J&J vaccine Cotton warns of China collecting athletes' DNA at 2022 Olympics MORE committed to ending America’s forever war. Yet pulling troops out of Afghanistan does not end the “forever wars” that the United States has engaged in since 9/11.

For 20 years, people suspected of terrorism have been targeted and killed by U.S. airstrikes and lethal counterterrorism operations. In advancing the United States’ withdrawal from Afghanistan and drawing to a close the United States’ longest war, the Biden administration should not fail to address these enduring air wars or risk normalizing a U.S. program of killing individuals outside widely recognized armed conflict.

Congress has a critical role to play in constraining any executive branch impulses or bureaucratic inertia towards expanding this program.

ADVERTISEMENT

Currently, the United States assumes broad policies and authorities for identifying and countering perceived terrorism threats outside war zones through the use of lethal force — with limited oversight and even more limited accountability

It’s not altogether clear what current legal rationales or policy directives guide lethal U.S. action. The Trump administration did not publicly disclose its reported policy changes to the guidance governing the U.S. drone program and counterterrorism operations that the Obama administration adopted, and the Biden administration has not yet publicly provided details on the “interim guidance” that it reportedly put in place upon entering office as it reviews the current rules for such activities.

Furthermore, it’s also unclear how many people have been injured or killed by U.S. operations, what is the strategic efficacy of these operations, or how the government assesses the results of its broader approach.

After years of allowing the executive branch to wage war unimpeded, Congress is beginning to reassert its Article 1 role. Congress has stepped in to fill gaps in transparency and prompt greater oversight of the United States’ use of force abroad by mandating that the administration report on the legal and policy frameworks governing the use of force and related national security operations as well as report annually on civilian casualties caused by U.S. operations. Unfortunately, previous administrations have at times ignored the legislative requirements with little to no consequence and existing congressional constraints on the use of force have proven quite elastic under executive branch interpretations.

Thus, there’s an urgent need to reinvigorate congressional engagement in and oversight of the use of lethal force, including over armed drone strikes, in order to rein in executive impulses now and in the future. Congressional engagement and oversight can serve as meaningful checks on the use of lethal force by the U.S. government and, importantly, help hold the executive branch accountable for its decisions.

ADVERTISEMENT

The current Congress has an opportunity to work with the Biden administration and reconstruct the U.S. approach to counterterrorism in a way that is more restrained, more accountable, and more sustainable. In so doing, Congress can help create a path forward that better aligns with U.S. commitments to the rule of law.

In our new Stimson Center report, A New Agenda for US Drone Policy and the Use of Lethal Force, we offer a series of recommendations for actions that Congress can take to increase oversight, strengthen transparency, and help institutionalize accountability for harm caused by U.S. operations. We recommend Congress hold regular hearings on U.S. operations and engagements in armed conflict and require the U.S. government to provide definitions of the opponents, mission objectives, and metrics for success.

In any repeal or replacement of the 2001 and 2002 Authorizations for Use of Military Force (AUMFs), we recommend any new authorizations must be limited by geographic scope and declared theaters of actual armed conflict, include sunset clauses, require congressional approval of any new associated forces, and place limits on the amount and/or type of force that can be used. Under the current AUMFs, administrations have justified lethal action against individuals and groups never foreseen as relevant to the aftermath of the Sept. 11 attacks or the U.S. invasion of Iraq. This cannot happen again.

Furthermore, Congress should require the public release of legal opinions and executive branch guidelines applicable to the use of force abroad, and that the Departments of Defense and State establish an effective process through which harmed civilians or surviving family members of individuals killed in U.S. operations may seek condolence payments.

Congress has a key role to play in ensuring the next generation is immune from the perils of the “forever wars.” It must not allow its Constitutional powers to be usurped and should assert its crucial role in oversight and transparency role to ensure that any lethal actions align with U.S. security strategies as well as foreign policy objectives.

Rachel Stohl is Vice President and Shannon Dick is Research Analyst at the Stimson Center.