Senator Kaine on the Forever War

Jack Goldsmith
Saturday, December 3, 2016, 3:00 PM

Last Wednesday, Senator Tim Kaine devoted his first Senate speech since the election to the AUMF and the war against ISIL. The occasion for the speech was the death Naval CPO Scott Dayton, a Virginian who was killed on Thanksgiving day while disposing of bombs near Raqqa, Syria as part of Operation Inherent Resolve (the operation against the Islamic State).

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Last Wednesday, Senator Tim Kaine devoted his first Senate speech since the election to the AUMF and the war against ISIL. The occasion for the speech was the death Naval CPO Scott Dayton, a Virginian who was killed on Thanksgiving day while disposing of bombs near Raqqa, Syria as part of Operation Inherent Resolve (the operation against the Islamic State). Kaine’s speech reviews the history of the AUMF and of the conflict against the Islamic State, and it makes a very powerful case that Congress should (i) do a comprehensive review of military action against non-state terrorist organizations, (ii) redraft the 2001 authorization “that has been stretched far beyond its original intent,” (iii) recognize that “this is a continuing threat that's not going away anytime soon,” and “most importantly,” (iv) “reassert its rightful place in this most important set of decisions.”

The speech is outstanding. I urge you to read it.

We began Operation Inherent Resolve, which is a war against ISIL, on August 7, 2014. President Obama announced at the time that we were engaging in targeted airstrikes against ISIL because of their advance torward Irbil. There’s a U.S. consulate in Irbil, so that was part of the President's inherent powers to defend the nation to protect our consulate.

But within a very few weeks, we had completely protected American interests, and President Obama said now is the time to go on offense against ISIL. He appeared before Congress – before the American public in a televised speech the evening of September 10, 2014, and said we had taken care of the imminent threat to the United States but now we needed to go on an offensive war to “degrade and ultimately destroy the Islamic State”. That description of what the mission is has now been broadened in the words of current Secretary of Defense Ash Carter to “focusing on ISIL's lasting defeat”.

Since the war against ISIL began in August of 2014, more than 5,000 members of the U.S. military have served in Operation Inherent Resolve either in Iraq or Syria, and right now just as an example from my home state, there is a carrier, the U.S.S. Eisenhower, that’s homeported in Norfolk that is in the Gulf right now as part of Operation Inherent Resolve.

The U.S. military has launched over 12,600 airstrikes. We're carrying out Special Forces operations. We're assisting the Iraqi military, Syrians fighting against the Islamic State in Syria, as well as the Kurdish Peshmerga in the northern part of the Iraq. Because of the work of the American troops and those they're working with, we've made major gains against ISIL in northern Iraq. The territory they control in northern Iraq has dramatically shrunk. We've made major gains in shrinking their territory in northern Syria, and that is to be credited to brave folks like Chief Petty Officer Scott Dayton. But the threat posed by the Islamic State continues, and increasingly, as their battle space shrinks in real estate, they undertake efforts off that battleground to try to destabilize us around the world.

So this fight against ISIL, which is a key, maybe the key national security priority involving U.S. combat operations in Iraq and Syria, will likely continue for the long foreseeable future even after the complete liberation of Mosul and Raqqa which I’m confident will occur.

The war has cost $10 billion, 800 days of operations, an average of $12 million a day, and I began honoring Scott Dayton, but Scott Dayton is not the only military member who's lost his life in this war. Five have been killed in combat. In total 28 American service members have lost their lives supporting Operation: Inherent Resolve.

As we speak, there are more than 300 Special Forces now in Syria fighting in a very complex battlefield where Turkish, Syrian, Russian, Iranian, Lebanese Hezbollah, and Kurdish forces are operating in close proximity as evidenced by recent developments in the growing humanitarian catastrophe in Aleppo.

I continue to believe, and I will say this in a very personal way as a military dad, that the troops we have deployed overseas deserve to know that Congress is behind this mission. As this war has expanded into two-plus years, I don’t know whether that would’ve been the original expectation, but more and more of our troops are risking and losing their lives far from home, I am concerned and raise again something I’ve raised often on this floor – that there is a tacit agreement to avoid debating this war in the one place it ought to be debated: in the halls of Congress.

The President maintains that he can conduct this war without a new authorization from Congress, relying upon an authorization that was passed on September 14, 2001. When the new Congress is sworn in in early January, I think 80% of the members of Congress were not here when the September 14, 2001 authorization was passed. So the 80% of us that were not here in 2001 have never had a meaningful debate or vote upon this war against ISIL.

I've been very critical of this president. I’m a supporter of the President. I am a friend of the President. I respect the Office of the President, but I’ve been very critical of this President for not vigorously attempting to get an authorization done. When the President spoke about the need to go on offense against ISIL in September of 2014, it took him six months from the start of hostilities to even deliver to Congress a proposed authorization. I actually think that's the way the system is supposed to work, that the President delivers the proposed authorization.

But I’ve also been harshly critical of the Article 1 branch because, regardless of whether or not the president promptly delivers an authorization or not, it is Congress under article 1 of the Constitution that has the obligation to initiate war. As my President knows, who not only is a Senator but a historian, the founding documents of this country are so unusual still today in making the initiation of war a legislative rather than an executive function.

Madison and the other drafters of the Constitution knew that the history of war was a history of making it about the executive, the king, the monarch, the sultan, the emperor. But we decided we would be different and that war would only be initiated by a vote of the people's elected legislative body and at that point would only be conducted by only one commander-in-chief, not 435.

We've not had the debate. We've not had the vote.

This has been ironic because I have for four years been in a Congress that's been very quick to criticize the President for using executive action. This is an executive action that most clearly is in the legislative wheelhouse and yet it has been an executive action that the body – and I am making this as a bipartisan and bicameral comment – the body has been very willing to allow the president to make.

I introduced a resolution for the first time to get Congress to debate and do its job in September of 2014, two days after the president spoke to the nation about the need to take military action against ISIL. That authorization led to a Senate Foreign Relations Committee hearing and a vote in December of 2014 to authorize military action against ISIL, but that committee resolution never received any debate or vote on the Senate floor.

In 2015 working together with a Senate colleague from Arizona, Senator Flake, we decided that we really needed to show that our opposition to ISIL and our belief that appropriate military force from the United States should be used against them was bipartisan, we introduced a bipartisan authorization of military force on June 8, 2015, in an attempt to move forward with some Congressional debate on this most important issue. Aside from a few informal discussions in the Senate Foreign Relations Committee, there's never been a mark-up, there’s never been a discussion, there has never been a committee vote, and no floor vote either.

So two and a half years of war against the Islamic State and 15 years now after the passage of the authorization in September of 2014, we see that that authorization has been stretched way beyond what it was intended to do. The authorization September 14, 2001, is a 60-word authorization giving the President the tools to go after the perpetrators of the attacks of 9/11. ISIL didn't exist on September 11, 2001. ISIL was formed in 2003.

President Obama recently announced that the authorization is now going to be expanded to allow use of military action against al-Shabaab, the African terrorist group, a dangerous terrorist group to be sure, but al-Shabab did not begin until 2007.

So an original authorization that was very specific by this body to allow action against the perpetrators of the 9/11 attacks is now being used all over the globe against organizations that didn't even exist when the 9/11 attack occurred.

Just to give you an example, the 2001 authorization has been cited by Presidents Bush and Obama in at least 37 instances to justify sending armed forces to send military force to 14 nations. The nations where we have currently justified military action pursuant to the authorization to go after the perpetrators of the 9/11 attack, we've authorized military action in the Bush and Obama Administrations in Libya, Turkey, Georgia, Syria, Iraq, Afghanistan, Yemen, Eritrea, Ethiopia, Djibouti, Somalia, Kenya, and the Philippines as well as authorizing military activity in Cuba at Guantanamo to maintain detainees.

Just in the last week, the New York Times reported that President Obama is expanding the legal scope of the war against al-Qaeda by easing targeting restrictions against al-Shabaab. But again this was a group that didn’t exist until 2007, six years after the 9/11 attack.

I'll just conclude and say, having been very vocal about this issue for a number of years – it's been disappointing but we're all used to not getting our way on all kind of things – it's been disappointing to me that we haven't been willing to take up this matter. I do think that a transition to a new Administration. A transition to a new Congress that will be sworn-in in early January always gives you the opportunity to review the status of affairs and make a decision about what to do. I believe it is time that we review the progress of the war against non-state terrorist groups – al-Qaeda, ISIL, al-Shabaab, Boko Haram, al-Nusra.

It is time for us to review military action against non-state terrorist organizations.

It is time for us to redraft the 2001 authorization that has been stretched far beyond its original intent.

It is time for us to recognize that this is a continuing threat that's not going away anytime soon.

But I guess what I’ll say most importantly, it's time for Congress to reassert its rightful place in this most important set of decisions.

Of all the powers that we would have as Congress, I can’t think of any that are more important than the power to declare war. I view that as the most important, the most difficult, the most challenging, the power that we should approach with the most sense of gravity. That is the most important thing that we should do.

It should never be an easy vote. It should be a hard vote but it should be a necessary vote.

I think the inability or unwillingness of Congress to grapple with this sends a message that's unfortunate. It send a message of lack of resolve to allies. It might even send a message of lack of resolve to our adversary. But the thing I’m most concerned about are people like Chief Petty Officer Scott Dayton, people who are serving in the theater of war, who are risking their lives in the theater of war, who are giving their lives in the theater of war, and doing it without the knowledge that Congress supports the mission that they are on.

As I conclude, the Article 1, Article 2, allocation of responsibilities is not just about what's constitutional; I think it reflects a value. The value is this: we shouldn't order people into harm's way to risk their lives unless there is a political consensus that the mission is worth it.

Anybody that volunteers for military service knows it’s going to be difficult and we won’t be able to change that. But if we're going to order people into a war zone, into combat, and order them to risk their lives. Even if they're not harmed, they may see things happen to colleagues of theirs that could affect them for the rest of their lives.

If we're going to order them to do that, then there should at least be a national political consensus that the mission is worth it, and the way the Constitution sets that up is the president makes a proposal, but then Congress, the people's elected body, votes and says “yes, the mission is worth it”.

Now that we've had that vote, now that we've had that debate and we’ve educated the public about what's at stake and now we said the mission is worth it, it is fair then to ask, are two million active duty guard and reserve, folks like Chief Petty Officer Scott Dayton, folks like my oldest son, it is then fair to ask them to go and risk their lives in a mission like this.

But if we're unwilling to have the debate and have the vote it seems to me to be almost the height of public immorality to force people to risk and give their lives in support for a mission we're unwilling to discuss.

I offer these words in honor of a brave Virginian who lost his life on Thanksgiving Day, November 24, and I hope this growing number of people losing their lives in Operation Inherent Resolve may spur this body to take this responsibility with more gravity.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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