Congress must move forward with an AUMF

By Daniel DePetris

Last week, Secretary of Defense James Mattis and Secretary of State Rex Tillerson were called to testify before the Senate Foreign Relations Committee about the 2001 authorization for the use of military force (AUMF) originally passed following 9/11. Sixteen years later, is this sufficient legislative authority to prosecute a global war on terrorism? The discussion with Mattis and Tillerson was the second public hearing on this issue, and one hopes will be the beginning of a new emphasis from members of Congress on just how essential reasserting the legislative branch’s war power is to America’s health as a country.

The framers of the U.S. Constitution could not have been any clearer about which branch of government holds the ultimate power during wartime. While subsequent laws like the 1973 War Powers Resolution provides the President of the United States—as Commander-in-Chief—to commence hostilities under certain conditions like retaliating for an attack upon the United States or preempting one that is imminent, Article I, Section 8 of the Constitution grants Congress the power to “declare war.”

In the modern era, that means authorizing the use of military force before U.S. servicemen and women are asked to put their personal survival in jeopardy in order to defend and protect the United States.

Placing the ultimate decision-making authority into the hands of the branch most intimately connected to the American people had a purpose.  Because declaring war generally meant mobilizing the entire nation into a volatile environment, drafting the young into the armed services, and raising taxes to pay for the war effort, the Constitution thrust the decision upon the American people—through their elected representatives in Washington—to vote on whether it was in the U.S. national security interest to do so.

While the nature of war in the 21st century has changed since the Constitution was enacted 229 years ago, the foundation upon which war is authorized in the United States must remain consistent. War is still a nasty business; conflict kills civilians, destroys families, levels entire cities, ruins a nation’s economic potential and could very well destroy its social unity; and entails parents bidding their children farewell knowing that perhaps they never come back. To enter a period of armed conflict with another nation or a terrorist group is to ask the nation to sacrifice .

But there are huge differences between the past and the present in how the United States prosecutes wars. Rather than debating the question in full view of the American people before a military operation begins, presidents make the decision on their own and Congress largely goes along for the ride to avoid politically difficult votes. Instead of a cross-section of young Americans being asked to fight on behalf of their country’s national security paying for war, Washington today has outsourced conflict to a small fraction of the American population (just one percent of Americans aged between 18-65) that serve in uniform.

Instead of raising taxes or cutting spending in other parts of the budget to pay for the war like the U.S. did in the past, lawmakers have pulled out the credit card to finance the costs of the war—throwing hundreds of billions of dollars into an entirely separate Pentagon budget that adds to a national debt that just passed the $20 trillion mark.  Difficult questions, like where, who, and whether the U.S. military should be deployed are avoided. And with fewer Americans serving and the sense of national sacrifice dwindling, the incentive for lawmakers to make war and peace the top priority decreases.

The unwillingness of Congress to debate, let alone pass, an AUMF since the last one was signed into law in 2002 is immoral and inexcusable.

When combining the lack of political incentive with the massive political fallout that many lawmakers experienced after their vote to authorize war in Iraq, Congress has been stuck in the doldrums—understanding that the 2001 AUMF against al Qaeda has been stretched way beyond its meaning, but nevertheless unable or unwilling to unite as a body and do something about it. Senate Foreign Relations Committee Chairman Bob Corker (R-TN) and Ranking Member Ben Cardin (D-MD) both accept the need for the legislative branch to update an authorization that three U.S. presidents have used as a basis for the war on terrorism with a new statute. Some lawmakers, like Sens. Jeff Flake (R-AZ) and Tim Kaine (D-VA), have filed bipartisan war resolutions that would do exactly that.

 As Army Capt. Nathan Smith—a veteran of America’s counterterrorism wars who has taken the Obama and Trump administrations to court over concerns that Congress did not formally meet its constitutional responsibilities by authorizing the conflict in the first place— recently wrote, "Even after observing it for so long, such cowardice is unfathomable to me.” He is not the only one who sees this cowardliness; many of America’s preeminent constitutional law experts have been experiencing the dread and depression of congressional malpractice for years.

Unfortunately, this sentiment will persist until lawmakers in both parties exhibit the decency of putting principle, constitutional responsibility, and love of country over partisan calculations and obsession with political self-interest. American soldiers should not be sent to war without any national decision regarding the merits of these engagements and whether they are so critical to U.S. national security interests that they require us to sacrifice our bravest.

The Senate Foreign Relations Committee deserves thanks and appreciation for at least holding hearings this year on the power to make war. But hopefully sooner rather than later, the committee will take the next, imperative step forward by actually marking up a new war resolution.

Daniel DePetris is a fellow at Defense Priorities.

This piece was originally published by The Washington Examiner on November 7, 2016. Read more HERE.