Published by The Lawfare Institute
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The country’s reaction to the heartbreaking massacre in Orlando has been dispiritingly predictable. When guns—and seemingly no other weapon—are involved in a national tragedy, initial talk of unity rapidly devolves into talking points on both sides. Often the political talk is for naught: Monday, the Senate voted down four measures aimed at curtailing the sale of guns to suspected terrorists.
Following Orlando, however, gun control is not the only political talking point to predictably emerge. Following the attack, Senator Marco Rubio (R-FL) and other Republicans pointed to the episode as “the new face of terrorism.” In a rare show of bipartisanship, Senator Bill Nelson, a Democrat, echoed his fellow Floridian’s sentiments when he declared in an interview with FOX News that “the Congress ought to declare war against ISIS.” Lawfare’s own Jack Goldsmith similarly raised the issue of Congressional authorization when he asked whether the Orlando attack would “be the event that finally sparks Congress to authorize force—officially and expressly—against ISIS?”
Yet, as with the failed gun control measures, the chances of an ISIL-specific Authorization for Use of Military Force (AUMF) passing Congress are likely doomed. Since the U.S. campaign against the Islamic State began on August 8, 2014, a number of AUMFs from both sides have expired in a languid Congress. Rep. Adam Schiff (D-CA) has introduced three AUMF drafts, each of which has been rejected by Republican lawmakers out of concern that the proposals would excessively hamstring the president by constraining the geographic and tactical scope of U.S. military operations against ISIL. A White House draft was criticized from the left because it neither retracted the Administration’s claim that the 2001 AUMF permitted it to wage war against ISIL nor did it restrain theories of inherent presidential power. Conservatives lambasted the draft for not going far enough, citing the inclusion of a sunset clause requiring a reauthorization in three years and its restrictions on ground forces—moves they argued would curtail the military’s flexibility.
Anyone holding out hope for an ISIL AUMF after the Orlando slaughter should keep in mind this disappointing pattern.
On May 3 last year, ISIL claimed its first attack on U.S. soil when two men attacked an exhibit of anti-Islam cartoons in Garland, Texas. Within days, Senator Tim Kaine (D-VA) cited the attack on national television as yet another reason for Congress to issue an AUMF against the Islamic State. Just over a month later, Kaine and Senator Jeff Flake (R-AZ) offered a bipartisan AUMF, the text of which can be found here. But the measure was tabled at the behest of Senator Bob Corker (R-TN), the chairman of the Senate Foreign Relations Committee, and any bipartisan goodwill quickly dissipated as Washington’s attention moved to the Iran deal.
Interest in an AUMF resurfaced after the terrorist attacks in Paris and San Bernardino in November and December respectively. After the then-new Speaker Paul Ryan (R-WI) launched a committee to study the feasibility and shape of a new AUMF in January. Representative Ed Royce (R-CA), the head of the committee, told the New York Times that a number of lawmakers were warming to the idea of an AUMF as a direct response to ISIL’s recent strikes. Congressman Mac Thornberry (R-TX), the chairman of the House Armed Services Committee, similarly supported a measure when he said, “when we send troops into battle, they need to know that they have the full backing of the government.”
But Senate Republicans have proven loath to discuss a war authorization in an election year. While the Obama administration submitted a draft ISIL AUMF to Congress, the White House argues that the 2001 AUMF is itself a license to wage war against ISIL without any geographic, temporal, or tactical limits. To the discomfort of many, Congressional leaders have accepted the argument that the 2001 AUMF already provides the White House with the necessary authority to wage a war, and that any new ISIL-specific AUMF should not handicap an incoming administration.
Both Senators Kaine and Jeff Flake (R-AZ), two leading proponents of AUMF reform, strongly implied to the Washington Post that Senate Majority Leader Mitch McConnell (R-KY) permitted a politically unpalatable AUMF proposal by Senator Lindsey Graham (R-SC) to reach the Senate floor as a means of torpedoing their own measure. Though Graham’s AUMF would merely grant Congress’s imprimatur to authority Obama already claims through the 2001 AUMF, Flake pointed out that Graham’s draft would struggle to receive any Democratic support on the Hill.
Even though Republicans and Democrats have overwhelmingly labeled the Orlando mass-murder a terrorist attack, it’s unlikely that either side will introduce an AUMF that approaches the consensus national security experts have largely forged. The 2017 National Defense Authorization Act passed the Senate last Tuesday without expressly authorizing force, and no representative in the House filed an amendment calling for an AUMF against ISIL—though two amendments call for a repeal of the 2001 AUMF and a prohibition on using funds for combat operations in Iraq and Syria until a new AUMF is enacted.
Indeed, the closest that Congress may come to passing an AUMF is an amendment on the second-to-last page of the 171-page bill that came out of the Senate:
SEC. 10001. (a) Congress finds that (1) the United States has been engaged in military operations against the Islamic State of Iraq and the Levant (ISIL) for more than 20 months; (2) President Obama submitted an authorization for the use of military force against ISIL in February 2015; and (3) under article 1, section 8 of the Constitution, Congress has the authority to ‘‘declare war”. (b) Therefore, Congress has a constitutional duty to debate and determine whether or not to authorize the use of military force against ISIL
In an interview after the Orlando attack, Kaine recognized the writing on the wall: “I’ve been trying to get Congress for two years to vote on [the AUMF], and Congress won’t even take action against ISIL! Good Lord!”
While the AUMF appears purely a cosmetic gesture at this point—even a fully-throated AUMF against ISIL is unlikely to cajole Obama into escalating the United States’ role in the fight—Kaine is correct in noting that an AUMF is necessary for maintaining the health of our constitutional system.
The power to declare war is among Congress’s most sacred constitutional powers. In an age where critics on both sides decry the “imperial presidency,” the legislative branch’s authority to declare war should be guarded jealously. As Jack points out, Congress, by controlling the power of the purse, has already legitimized current operations against ISIL. Yet by declining to pass an ISIL-tailored AUMF, Congress is also legitimizing an extraordinarily broad reading of the 2001 AUMF and the implications it holds for executive power.
Now this may just be a case of Congress refusing to expend legislative energy and political capital for what it considers an ostensibly symbolic measure. In 2013, after all, the Obama administration backed down from conducting airstrikes against the Syrian regime, even after Syrian President Bashar al Assad had crossed Obama’s “red line” by using chemical weapons, because the White House didn’t have the votes in Congress to approve force.
But Congress’s preference to abrogate its declaratory power rather than assume responsibility for a military campaign that is nearing its two-year anniversary signals the rot in our system. It not only denies our country an important debate on what strategies should be employed to defeat ISIL, it also signals our disunity against a foe that actively recruits from within the U.S.’s own borders.
Both sides talk about Orlando in national security terms without being willing to step up to the constitutional plate. Their recalcitrance is a disservice to the Americans who have already given up their lives in the war against the Islamic State.