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Congress needs to take a look at constitutional use of military force

Congress needs to take a look at constitutional use of military force
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Immediately following the 9/11 terrorist attacks, Congress enacted the Authorization for Use of Military Force to provide President George W. Bush the authority to launch attacks against Al Qaeda and its Taliban hosts, primarily in Afghanistan. While the authorization has implications under international law, its main purpose was to ensure that the offensive military actions President Bush took against the Taliban came with congressional approval.

Sixteen years later, the authorization remains in force, and Sens. Jeff FlakeJeffrey (Jeff) Lane FlakeTrump boosts McSally, bashes Sinema in Arizona Watch live: Trump speaks at Arizona rally Mnuchin to attend anti-terror meeting in Saudi Arabia following Khashoggi disappearance MORE (R-Ariz.) and Tim KaineTimothy (Tim) Michael KaineAmerica’s ball cap industry is in trouble Overnight Defense: Trump says 'rogue killers' could be behind missing journalist | Sends Pompeo to meet Saudi king | Saudis may claim Khashoggi killed by accident | Ex-VA chief talks White House 'chaos' | Most F-35s cleared for flight Democrats torch Trump for floating 'rogue killers' to blame for missing journalist MORE (D-Va.) say the time has come to revisit that grant of authority. The 2001 authorization by its terms provided the president statutory authority to pursue any entity involved in the 9/11 attacks. Pointing to this language, three successive presidential administrations have claimed the military authorization sanctions offensive military actions from drone strikes to special forces operations throughout the Middle East and North Africa.

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Members of President TrumpDonald John TrumpFive takeaways from Gillum and DeSantis’s first debate GOP warns economy will tank if Dems win Gorbachev calls Trump's withdrawal from arms treaty 'a mistake' MORE’s national security team have voiced doubts about the need for a new authorization to pursue terror groups, but critics have been arguing for years that presidents have stretched the authorization to the breaking point. At the same time, President Trump has threatened to expand the use of American military force throughout and beyond the Middle East. Members of Congress have expressed surprise that the administration has sought to use the authorization to justify military operations in places like Niger, where American soldiers were recently killed in action.

Does the far-flung nature of U.S. operations that have only a vestigial link to the original goals of the military authorization mean that, as Sens. Flake and Kaine argue, the time has come for Congress to craft a new authorization of military force where terrorism is concerned? Setting aside the question whether international law requires such an authorization, and the debate over the specific limits on presidential military authority a new authorization should contain, the strongest and most urgent reason to support the effort by Sens. Flake and Kaine is to preserve Congress’s intuitional legitimacy when it comes to national security.

The Framers of the U.S. Constitution intended that both Congress and the president should participate in the decision whether to commit American military forces to battle. Congress, after all, has the power not just to declare war but to raise and support the armed forces, while the president is the commander-in-chief of those forces. But the Framers did not explain precisely how Congress and the president would share the power to authorize our armed forces to engage in offensive military operations.

Recently, presidents have acted unilaterally, with little or no specific congressional support. Consider, for example, President Trump’s order to launch an air attack on Syria. Congress has acquiesced in such decisions, leaving it to the president to take both the political risks and reap the political rewards for his decisions.

Today, acquiescence is not a viable option if Congress hopes to preserve its constitutional role in the most critical matters of national security decision-making. Should members of Congress continue to stand by as the president orders military operations only tenuously related to the goals of the authorization, it is difficult to see how Congress can legitimately claim that it is continuing to assert its constitutionally prescribed role.

To be sure, much has been learned about the ways in which the nation should fight against terrorism since Congress first enacted the authorization, and it would be impossible to expect that the congressional drafters in 2001 could have anticipated all of the challenges terrorism poses today. But there is no good reason Congress could not to take into account any lessons learned and draft an updated authorization, one that reflects the realities of the current fight.

There will certainly be difficulties in crafting a revised authorization. It will require Congress to balance appropriate limits on the president’s power to engage in offensive military actions with the need for him to exercise the discretion necessary to protect the U.S. from terrorist threats abroad. But striking the right balance is precisely the task the Framers assigned to the most democratic and accountable branch of the federal government — and not exclusively to the one person who happens to be occupying the Oval Office.

Victor Hansen and Lawrence Friedman are professors of law at New England Law in Boston and authors of “The Case for Congress: Separation of Powers and the War on Terror.” They recently discussed Authorization for Use of Military Force in a podcast for New England Law Review.