How many times will legislators tuck tail and run on this issue?
How many times will legislators tuck tail and run on this issue?
O n Tuesday, the U.S. House of Representatives passed the National Defense Authorization Act (NDAA) by a predictably wide 363–70 margin. The compromise bill, which was hammered out behind closed doors by the leaders of the House and Senate Armed Services Committees, was the product of a last-minute scramble after a Senate dispute over amendments stalled the original bill on the floor.
Like all NDAAs, this year’s 2,165-page defense-policy bill includes a number of national-security priorities that lawmakers were itching to attach, including a $25 billion addition to President Biden’s original spending request, the purchase of 85 F-35 joint strike fighters, more money for Air Force and Navy fighter aircraft, and a 2.7 percent pay raise for U.S. troops. The Pacific Deterrence Initiative, designed to resource the Biden administration’s strategic pivot to Asia, received a $2 billion boost over what the Defense Department asked for.
What it doesn’t include, however, is any semblance of interest on Capitol Hill about addressing the war-powers elephant in the room — even though a growing number of lawmakers in both the House and the Senate realize the absurdity of keeping outdated war-powers resolutions on the books. One such resolution is the 2002 Authorization for Use of Military Force (AUMF), which authorized then-president George W. Bush to use all necessary and appropriate force to overthrow Saddam Hussein, the dictator who supposedly had weapons of mass destruction and was willing to share those deadly weapons with terrorists (we all know how that story turned out).
At first, it seemed as if the Senate was primed to act on repealing the 2002 AUMF after years of stonewalling the issue or rendering it a waste of the chamber’s time. Senate majority leader Chuck Schumer assured his fellow senators that repeal would be addressed this year, writing in a Dear Colleague letter last month that the NDAA would be used as a vehicle to do it. Yet when push came to shove, the war-powers issue, the most consequential anyone in a position of power will deal with during his or her career, was left to wither on the vine again.
Why did negotiators leave out the provision repealing the 2002 AUMF from the compromise defense bill? To argue that such a provision would be too controversial doesn’t pass the laugh test; the House passed repeal last June on a strong bipartisan vote, and the Senate Foreign Relations Committee advanced its own version in August. It’s not like President Biden is lukewarm to it either. The White House is on record supporting the resolution’s demise, going so far as to openly admit the 2002 AUMF is a practically useless piece of paper at this point.
This conclusion squares with reality. Saddam Hussein, after all, has been dead for nearly 15 years; the Iraqi Baathist regime the U.S. toppled has been dead and buried for an even longer period of time; and the Iraqi government today is not an adversary but another one of Washington’s dependents, having received $7 billion in U.S. security assistance since 2014. Washington also sells Iraq a significant amount of military equipment ($16.3 billion in active sales alone, according to the U.S. State Department), including an assortment of combat aircraft, helicopters, long-range radar, tanks, howitzers, and various munitions.
Some lawmakers, like Senate minority leader Mitch McConnell, continue to make the case that the 2002 AUMF gives the U.S. legal cover for counterterrorism operations in Iraq. But this is a total misunderstanding of what this authorization does and doesn’t allow and suggests some of the most senior lawmakers haven’t even bothered to read the law. The 2002 AUMF has nothing whatsoever to do with counterterrorism — and to claim otherwise is a disingenuous attempt to stymie a discussion Washington should have had years ago about the current war-powers framework.
Ultimately, though, the big issue isn’t the 2002 AUMF, the 2001 AUMF, or any other war resolution still kicking around (and there are several, including a 1957 resolution that gave then-president Dwight Eisenhower the power to use force in the Middle East to ward off international communism). Rather, the issue is that Congress as an institution appears to be completely incapable of mustering the courage to take the hard votes the American people expect them to take.
Given the pile of other priorities on deck, from a lingering appropriations process to a pandemic that won’t go away, there will be those who give Congress a pass for kicking the war-powers ball down the road yet again. However, such a blasé mentality is dangerous, both to how the American Republic is supposed to function and to the processes and procedures the founders codified in the U.S. Constitution. It’s also a gift to future presidents utilizing ever more preposterous legal interpretations about what constitutes war and when the executive branch can act on its own. If you don’t believe me, just peruse the Obama administration’s 2011 explanation for why bombing a country is not necessarily an act of warfare.
How many times can the ball be kicked before it just deflates? And how many times can Congress duck and weave from the subject of war and peace before the institution itself, constitutionally on the hook for determining when the U.S. is and isn’t at war, loses whatever legitimacy it has left?