War Powers: the most effective tool Congress has

By Daniel DePetris

On April 2, 1798, nearly 10 years after the U.S. Constitution became the founding document of the United States, James Madison wrote a letter to Thomas Jefferson that would serve as a timeless and compelling explanation for why the power to declare war was placed in the legislative branch. “The constitution supposes, what the History of all Governments demonstrates,” Madison wrote, “that the Executive is the branch of power most interested in war, and most prone to it.” More than 200 years later, members of the 115th Congress would be wise to take those words into consideration.

With U.S. combat and advisory forces engaged in dozens of countries on every continent except Antarctica, members of Congress in both parties can no longer be content with sitting on the sidelines. As history has proven time and again, authorizing the use of military force is the most consequential decisions an American politician will ever make in his or her lifetime. Understanding the unpredictability of warfare, the shrinkage of personal liberty on the homefront often associated with it, and how empires and dynasties in the past were dissolved from overextension, the founders of the Constitution sought to ensure that the U.S. would be saved from a similar fate.

Barring certain extraordinary exceptions, such as an armed attack upon the U.S., the country would not initiate a war until the American people’s elected representatives voted to do so—whether it be through a formal declaration of war or through a statutory authorization for the use of military force (AUMF).

That democratic check on the president’s war-making authority, however, has turned into a thin veneer.

Ever since Congress passed the 2002 AUMF against Iraq, lawmakers entrusted with the authority to make decisions about war and peace have been far happier in the role of passive bystanders. Rather than passing a new authorization or amending war resolutions already on the books to match the current strategic environment, Congress has failed to do its job, choosing to keep outdated authorities in place while stretching their original meaning. The 2001 AUMF, a specific resolution authorizing force against Al-Qaeda and the Taliban, is now a contorted pretzel where seemingly any terrorist group Washington is fighting—from the Islamic State in Syria and Boko Haram in northeastern Nigeria to an ISIS affiliate in the southern Philippines—is included.

The congressional abdication of responsibility is far broader than the AUMF issue, however. The pace of counterterrorism operations, train and advise missions, airstrikes, and special forces raids over the past 16 years has been so intense that many members of Congress are overwhelmed by the activity or simply ignorant of what is going on. In some cases, the president has not even informed senior lawmakers about a pending military operation until it already occurred; rank-and-file members generally learned about President Donald Trump’s airstrikes on a Syrian military airfield last April by watching television or scanning social media. And when four U.S. Army special operators lost their lives in Niger during an advisory patrol in October, some senators were surprised that U.S. soldiers were in the country at all.

It is incredibly difficult, if not impossible, for the legislative branch to oversee U.S. military operations around the world when the White House omits critical information about the number of American soldiers deployed to active conflict zones or when the Pentagon provides inaccurate counts.

Fortunately, thanks to the efforts of George Washington, James Madison, and John Jay during the Constitutional Convention two centuries ago, Congress is not without tools. Indeed, by exploiting the power it already has in the Constitution and later in the 1973 War Powers Resolution, lawmakers can begin to address the gross imbalance of influence between the executive and legislative branches that has defined the war debate since 2002.

The various national security committees in the House and Senate could call more hearings about the Trump administration’s foreign policy and call more witnesses from the State and Defense departments to testify about those policies. Congress can use the power of the purse by making a portion of funding contingent on more transparency from the executive branch on where American troops are operating, under what legal authority, and what the detailed objectives of those missions are. Senators could block presidential nominations to specific agencies to compel the executive branch to comply with document requests. In an extreme case, senators could filibuster a nomination on the floor until the administration clarifies what a specific policy does and does not include—a tactic that has proved successful before.

The most effective tool Congress can employ, however, is following the Constitution and authorizing wars before the first U.S. soldier is deployed. This is what the Constitution demands and what the American people expect from the elected officials they send to Washington to represent them. But Congress can be taken seriously on national security again if members in both houses and in both parties assert the legislative tools at their disposal and exhibit more political courage.

Daniel DePetris is a fellow at Defense Priorities.

This piece was originally published by The Hill on January 1, 2018. Read more HERE.