The law that has a soldier’s back
In at least five countries, American military personnel are on the ground battling terrorists. In March, the Trump administration threatened a preemptive strike on North Korean nuclear facilities. In April, it launched missiles against Syria for its use of chemical weapons. And in recent days, the United States has shot down Iranian drones and a Syrian fighter jet, creating a potential flashpoint with Russian forces.
Like many presidents before him, Mr. Trump has initiated military actions as commander in chief without clear approval from lawmakers. The last time Congress fulfilled its constitutional duty by actually declaring war was in 1941. But now many on Capitol Hill say recent US military actions, including those during the Obama era, should compel Congress to provide a new type of approval.
The last time Congress granted some broad powers to the president for military action was in the wake of the Sept. 11, 2001, attacks. Lawmakers – most of whom are gone – passed two resolutions called Authorization for the Use of Military Force. Since then, however, terrorist groups have evolved. To many scholars, AUMF is out of date. And the US, even as it fights Islamic State in many places, is struggling in Syria to define which of the many warring parties is a foe.
Nonetheless, the real reasons for a new authorization are moral ones.
Soldiers who put themselves at risk must know that Americans, through a bipartisan consensus of lawmakers, support a strategic goal. In addition, an open deliberation in Congress over authorization might improve a military strategy or drive the US to seek peaceful means. And to prevail in a conflict, the US must make clear to its adversaries that it has long-term national resolve.
By acting lawfully in its military operations, the US can also influence other countries to do the same. Such behavior then encourages more countries to follow international norms and laws in the use of force across borders.
For the first time in years, the Senate Foreign Relations Committee held a hearing June 20 on a new AUMF. The panel considered a bill, proposed by Sens. Tim Kaine of Virginia, a Democrat, and Jeff Flake of Arizona, a Republican. The measure attempts to bridge differences between the parties over how much operational authority should be given to a president. It sets limits, for example, by defining specific terrorist groups in six countries. And the AUMF would be valid for only five years.
In his last year in office, President Barack Obama proposed his own AUMF. But in an election year, it didn’t go anywhere. Now Congress should seriously consider such a bill. What it needs first, however, is a concrete counter-terrorism policy from the White House. That would be a starting point for a national debate.
Waiting 16 years to renew such congressional authority has consequences for the nation’s integrity. As Kathleen Hicks of the Center for Strategic and International Studies told legislators, an out-of-date authorization “jeopardizes our nation’s principled belief in the rule of law and thereby risks the legitimacy of the institutions designed to create, carry out, and enforce such laws.”
