Congress and the president need a new war powers partnership

Congress and the president need a new war powers partnership
© Getty Images, Greg Nash

The congressional frustration over the post 9/11 authorization for use of military force (AUMF) boiled over on a bipartisan basis after a late February attack on an Iranian militia base in Syria by the Biden administration. This week, the House Foreign Affairs Committee voted to repeal the 2002 authorization. 

The difference this time is that the president acknowledged the need to work with Congress to replace the AUMF and refresh the presidential authority to use force.

Most on the Hill acknowledge that the authorization was designed to counter Al Qaeda and its later terrorist iterations, threats that have been largely contained. Presidents have long since expanded that authority to use force even in countries where Al Qaeda wasn’t present and where no use of force had been authorized. 

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How then can the Congress and the executive branch replace the AUMF with authorizations that preserve the ability of a president to respond to a sudden attack, preempt an impending one and generally provide for the defense of the country and our people? While the threats may be even more varied and asymmetrical today, these were questions that drove the debate over the war powers act back in 1973. 

The original Senate bill was consistent with the Founders’ intent that “Congress shall declare war” in all instances except three generic emergency situations: 

  1. “To respond to attacks or the imminent threat of attacks upon the United States, its territories or possessions;” 
  2. To respond to attacks or the imminent threat of attacks on the Armed Forces of the United States” and;
  3. “Under proper circumstances to rescue endangered citizens of the United States located in foreign countries (here a determination would have to be made that the host country was unwilling or unable to protect U.S. citizens).”

The war powers resolution that eventually passed (over a presidential veto) accepted what the House conferees insisted was a “new reality,”e.g. that presidents routinely usurp Congress’ constitutional role and deploy forces without prior consent. Its ineffectiveness was revealed in language asking the executive branch to consult Congress “in every possible instance.” 

The assumed Article II prerogatives of the commander in chief, the claimed need for secrecy and the reluctance of Congress to organize itself to receive information related to “imminent hostilities” have too often overridden the consultation requirement. 

Thus, the compromise that created the war powers resolution, originally designed to regain the Congress’ power over war, instead became a device to try to control war making after the horse had left the barn. It hasn’t deterred engagement in conflict and has largely been ignored or rationalized by the executive branch. 

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The challenge today is to accommodate those who do not wish to give the president too much power to use force and those who want to provide even more flexibility to battle terrorists and other asymmetric threats. Where you stand on these issues depends to a great extent on which party holds the presidency. How, then, to overcome this polarized dynamic?

The delegations of emergency authority in the original Senate bill could well become the basis of a renewed relationship with Congress on war powers. Interestingly, the current president, then-Senator Biden, was a cosponsor of the Senate bill in 1973

There is no serious debate over a president’s obligation to repel a sudden attack on the nation or our forces. The third delegation of authority — to rescue endangered Americans — was carefully circumscribed in the Senate bill. 

The debate in this age of terrorism revolves around three issues: the meaning of “imminent threat;” the evidence that may or may not support a preemptive attack; the perceived need to retaliate ex post facto; and the deployment of the military to a country with which we are not at war.

The determination of whether an imminent threat exists should be a shared responsibility. When the war powers resolution was passed the Senate and House Intelligence Committees did not exist. Today those committees and the Armed Services and Foreign Relations/Affairs committees routinely receive sensitive information. The bipartisan leadership of those committees and the leaders of the House and Senate can today more easily organize themselves to receive sensitive threat assessments.

Arguably, the commander in chief may need the authority to retaliate if our forces are attacked as they were in Iraq prior to the February attack in Syria on the Iranian militia. It could be rationalized that this would not only punish hostile elements but also deter them from undertaking future attacks. But this should be debated. Does it fit the emergency use criteria? Is it a legitimate use of the self defense rationale? While Syria is already a war zone, retaliating against an enemy in a third country not at war could have larger implications. 

Taking preemptive action requires even more careful consideration and being swept up in a frenzy isn’t conducive to rational decision making. However, knowing that actions will be subjected to review can temper the deciders. 

For example, with the benefit of time we can stand back and recognize that a terrorist attack such as occurred on 9/11 creates a national reaction. Alexander Hamilton warned of times when “the national councils may be warped by some strong passion or momentary interest.” The AUMF was a product of that reaction; it has long outlived the moment.

The same could be said of a 2002 statement in the Bush administration’s national security strategy: “We do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack.” This “preemption doctrine,” as it was called, was accompanied by the “one percent doctrine,” a statement by Vice President Dick Cheney that we could preemptively respond even if there were only a “one percent” chance that we could be attacked.” “It’s not about our analysis,” he said, “or finding a preponderance of evidence. It’s about our response.” 

Acting in the self defense of the nation carries with it the obligation to present compelling evidence of the threat. If we assume that our superior power gives us the right to attack another in the absence of such evidence, we are fostering a world of chaos. A president alone should not be able to make the internationally recognized right to self defense a rationale for aggression.

A president is obliged to do everything necessary to protect our armed forces when they are deployed overseas. Currently they are in more than 150 countries around the world, with a dozen or so major bases. Congress is not only aware of this, they annually provide an appropriation to keep them in place. Clearly, any new deployment must be authorized. More importantly, Congress and the executive branch should be reviewing this force posture constantly with a view to reducing our exposure.

There may be a need to reconsider the wording of emergency delegations in the 1973 Senate war powers bill. The president and Congress should agree on guidelines that will underlie the legal language. But despite the changed threat environment the delegations should remain generic, unlike the AUMF, which identified an enemy that has mostly departed the scene.  

A new war powers partnership between Congress and the executive branch is needed as never before. The risks of miscalculation are even greater than they were in 1973. The president needs emergency powers but Congress cannot be left on the outside, standing back to blame or praise. Both branches need to accept responsibility for the safety and welfare of the American people. If we must use force, both branches should be engaged in the decision.

J. Brian Atwood is a visiting scholar at Brown University’s Watson Institute. He is the author of "The War Powers Resolution in the Age of Terrorism," published in the St. Louis University Law Review in 2007. He served as undersecretary of State and administrator of USAID in the Clinton administration.