Congress must reclaim war power

Congress must reclaim war power
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The Constitution states clearly in Article One that Congress “shall have power” to declare war. The last time the country officially did so was in 1942, against Hungary, Bulgaria, and Romania. In every military conflict since, the United States has used force without a declaration of war, in effect delegating authority to the president. Then in 1973, the campaign led by President Nixon in Vietnam, in defiance of Congress, prompted lawmakers to pass the War Powers Resolution, which places a time limit on military action that can be taken without a formal declaration of war.

Since that time, Congress has approved the use of military force on four different occasions. Two of them, in 2001 against those who attacked us on 9/11 and in 2002 against the Saddam Hussein regime in Iraq, occurred while I served in the House. But the number of times that presidents have used military force far exceeds the number of times Congress has voted to approve it. The authorization for use of military force in 2001 has been invoked by three presidents in justifying some 40 actions in 14 countries.

Congress has talked the talk about the need to repeal and replace it. The language to repeal it was included in the defense appropriation bill last year, but it was stripped out of the final version. So the threadbare 2001 authorization, which those of us who voted for it believed was limited by time and place, remains in effect. Why? The scope of an authorization for use of military force is tricky. Limiting geography, appropriated funds, or the number of “boots on the ground” arguably encroaches on the Article Two commander in chief authorities that were granted to the president.


On the other hand, not limiting these things gives the president a blank check and an excuse to blame Congress if things go wrong. That exposes a more fundamental and cynical reason that Congress shies away from acting. Because of the political risks, most in Congress prefer not to own the consequences of permitting or forbidding the use of military force. To illustrate, former Vice President Joe Biden, in his run for 2020, still faces criticism for voting to approve the Iraq War back when he was a senator.

Neither the House nor the Senate has voted on another authorization for use of military force, whether replacing the existing ones or authorizing a new campaign. But that is not to say no one has tried. Notably, the Obama administration twice sought permission from Congress for military action, in 2013 in Syria after Bashar Assad attacked his own people with chemical weapons, and in 2015 in the fight against the Islamic State. But without any Republican support, neither attempt got to a vote. In an ironic twist, the proposals of President Obama were meant to curb his own power and included strict time limits. Republicans remained skeptical. “There is no reason for us to give him less authority than what he has today,” former House Speaker John Boehner had said, “which is what he is asking for.”

Both Republican and Democratic senators have spoken publicly about the need for an authorization for use of military force for years. Seven years ago, former Senate Foreign Relations Committee Chairman Bob Corker spoke at the Wilson Center and called it “feckless” of Congress not to act on it Three years ago, Senator Jeff Flake and Senator Tim Kaine visited the Wilson Center to criticize the “lack of backbone” in Congress. Their repeal and replace attempt in 2017 and then an effort led by Corker and Kaine the following year both failed. They would have replaced the 2001 and 2002 authorizations and allowed the president to continue the existing military campaigns while ensuring the ability of Congress to reject any new ones. The Democrats objected to the lack of a sunset provision, however, and the Republicans were content to keep existing authorizations in place.

Since that event, there has been no serious movement until recently. The killing of Iranian general Qassem Soleimani by a weaponized drone last week renewed efforts in the House and Senate to vote on a War Powers Resolution. While this still stops short of acting on a new authorization for use of military force, President TrumpDonald John TrumpCNN's Anderson Cooper: Trump's Bubba Wallace tweet was 'racist, just plain and simple' Beats by Dre announces deal with Bubba Wallace, defends him after Trump remarks Overnight Defense: DOD reportedly eyeing Confederate flag ban | House military spending bill blocks wall funding MORE may have to halt conducting any further military action against Iran unless Congress votes to approve it.

The House version passed yesterday. Its lead sponsor was Representative Elissa Slotkin, a former Central Intelligence Agency and Pentagon official who served three tours in Iraq. Speaker Nancy PelosiNancy PelosiHouse Democrats seek to use spending bill to remove Confederate statues from Capitol West Virginia governor issues order for wearing face coverings indoors The Hill's 12:30 Report - Presented by Facebook - Supreme Court's unanimous decision on the Electoral College MORE also suggested the House will consider additional legislation to repeal the 2002 authorization and to require approval from Congress for the president to direct funds toward military action against Iran. In the Senate, a resolution sponsored by Kaine could face a vote next week. Senator Rand Paul and Senator Mike Lee, both Republicans, said they would support it. That means Kaine only needs to win over two more Republicans, who most likely may be Senator Susan Collins and Senator Todd Young, to reach the key simple majority.


What impact might these votes have? They may amount to a symbol that Congress is trying to reclaim its authority over foreign policy. The House chose to use a concurrent resolution, which is not sent to the president for his signature or veto, and which the Supreme Court has ruled does not have the force of law. The Senate version is a joint resolution, which ultimately goes to the Oval Office and could then be signed or vetoed.

There is a related critical issue. Even without an authorization for use of military force, the president had an obligation to brief the “Gang of Eight” on his proposed targeted killing of Soleimani. Five days after the fact, he sent Mike Pompeo, Mark Esper, and Gina Haspel to brief all members, only to leave Republicans and Democrats fuming. Lee called it “probably the worst briefing at least on a military issue I have ever seen.” Representative Gerry Connolly called it “sophomoric and utterly unconvincing.” So as a regular consumer of briefings during my tenure as the ranking member of the House Intelligence Committee, it sounds to me like the administration gave a lecture whose theme was “trust us and do not talk to the press.”

That is certainly far below the acceptable standard for briefing members of Congress. The silver lining is that the Iran killing is getting Congress to realize how unacceptable it has been for three presidents in a row to have a blank check in matters of war. The authorization debate is 18 years late, but at this very toxic political time, it would be extremely welcome news.

Jane Harman is the president of the Woodrow Wilson International Center for Scholars. She served in Congress as a Democratic representative from California and was ranking member of the House Intelligence Committee.