Americans might differ over the finer points of the Founding Fathers’ plan to share war-making authority between the executive and legislative branches, but the basic principle has always been clear. Congress, and only Congress, has the power to declare war; the president and his military advisers are responsible for waging it.
Lawmakers’ latest attempt to restate their constitutional prerogative has those aims backward.
Since the start of this century, three consecutive presidents expanded the war against terrorism well beyond its original purposes — yet Congress repeatedly failed to update or set aside the measures it passed in 2001 and 2002 authorizing the invasions of Afghanistan and Iraq. Lawmakers back then had no inkling of the future rise of Islamic State, the Syrian civil war, or the spread of Islamic extremism in northern Africa and the Arabian Peninsula. Those initial authorizations have been stretched beyond the bounds of plausibility.
Now a couple of Senate heavy hitters — the Republican chairman of the Foreign Relations Committee, Bob Corker and former Democratic vice-presidential nominee Tim Kaine — have put together an authorization bill supplanting the previous two. Unlike previous proposals, it has a chance of actually getting to a floor vote.
On the biggest issue — providing legal footing for the expanded war — the proposal does fairly well. It would explicitly add Islamic State to the list of targeted parties, alongside the Taliban and al-Qaeda. It would also give the president authority to take the battle to five named “associated forces,” including al-Qaeda offshoots in Syria and Yemen, and to further broaden the mission as new groups appear in new battlefields. Before any such broadening, the White House would have to give Congress a detailed rationale.
All of that is sound. In other ways, the measure is disappointing.
Though it repeals the two earlier authorizations, the bill confusingly adds that it provides “uninterrupted authority” for the use of force authorized in 2001. It’s hard to say what this means, but some fear it might give the president a back-door way to undertake missions not clearly authorized under the new bill.
Equally worrisome, the proposal contains no sunset provision requiring reauthorization by Congress. Instead, it would mandate only a floor debate every four years on repealing or replacing. That seems unduly passive.
At the same time, the bill mandates that if the president wanted to target a new enemy force or significantly expand the war’s geographical scope, Congress would have 60 days to review the idea before being obliged to vote on it. Lawmakers probably wouldn’t reject such a request, but the possibility could serve to tie the commander-in-chief’s hands on essentially operational matters.
In addition, although it’s good that the executive branch has to keep Congress informed about new fronts, there’s no requirement to release a declassified version of its case. So far as the broader public is concerned, the bill would fail to provide greater transparency and accountability.
Congress had stood on the sidelines of the war on terrorism for too long. This was not just constitutionally incorrect, it was also unwise, because it set precedents that could allow future presidents to act unilaterally, with too little regard for countervailing arguments and public opinion. If it goes on, this abdication of responsibility will leave the U.S. weaker.
The Corker-Kaine approach is right to want Congress back in the game, but wrong to go about it like this.