By Bonnie Kristian
In mid-June, as the House of Representatives approved a new defense funding package, it quietly voted down an amendment to end the Authorization for Use of Military Force (AUMF) that for a 15 years has given two administrations a blank check for war.
That vote is hardly surprising, as Congress has long since demonstrated it lacks the political will to reassert its constitutional authority over matters of war and peace. The issues of prudence more responsible minds might raise—that the Islamic State did not exist when this AUMF was approved back in 2001, for instance, or that the document places no geographic, fiscal, or temporal limits on what this president (or the next) can do under the war on terror umbrella—apparently strike our representatives as no cause for concern.
With Congress thus reiterating its fecklessness in all things international, those of us seeking a more restrained (or, at the very least, better-debated) foreign policy must turn elsewhere. Intriguingly, perhaps our best hope comes from within the ranks of the military itself, in the form of a lawsuit from an American soldier actively fighting ISIS.
U.S. Army Captain Nathan Smith is based in Kuwait and part of Operation Inherent Resolve, the anti-ISIS effort he argues—persuasively—is illegal. He filed suit against President Obama in the D.C. District Court in May, making the case that he is being forced to violate his oath to “support and defend the Constitution of the United States” as war on ISIS “violates the War Powers Resolution because the Congress has not declared war or given the president specific statutory authorization to fight the war.”
The War Powers Act requires congressional authorization for the president to deploy troops longer than 60 days—and if we take President Obama at his word that the wars in Iraq and Afghanistan ended in 2011 and 2014, respectively, then congressional permission to fight ISIS is long, long overdue.
Smith himself initially supported anti-ISIS strikes, but he began to be uneasy as weeks turned into months without a peep from Congress. “I began to wonder, ‘Is this the Administration’s war, or is it America’s war?’” he said. “The Constitution tells us that Congress is supposed to answer that question, but Congress is AWOL. My conscience bothered me.”
He remains bothered still—but now with the support of constitutional scholars who say his complaint is correct. Advising the suit is Yale’s Bruce Ackerman, who argued nearly a year ago that a suit like this might and should succeed. “The biggest casualty in the struggle against the Islamic State so far has been the American Constitution,” he wrote, pointing out that since the Vietnam War, “Existing case-law establishes that individual soldiers can go to court if they are ordered into a combat zone to fight a war that they believe is unconstitutional.”
Even if the Supreme Court ultimately “upheld the [Obama] administration’s view,” Ackerman notes, “it would put future presidents on notice that the justices will seriously scrutinize further efforts to transform the resolutions of 2001 and 2003 into open-ended grants for new military adventures.” After the last decade and a half of costly foreign entanglement, surely that sort of accountability should appeal to all but the most reckless hawks.
Ackerman isn’t the only scholar who agrees the AUMF (and executive war power more broadly) has been stretched beyond on all reasonable scope. The White House claimed in October that Article II of the Constitution—which on this issue simply states the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”—is all the authorization Obama needs to expand the war on ISIS to include use of force against Syrian government troops because doing so could protect U.S. equipment given to Syrian rebels.
But by that vague logic, “any person or piece of military equipment used by anyone on a side of a conflict with which we agree is all of a sudden covered by Article II,” said Stephen Vladeck, an American University law professor. It exempts an imperial executive from all meaningful constitutional restraint in foreign policy, “And that cannot be right.”
Contrary what defenders of the status quo might suggest, ending the 2001 AUMF and debating a new, more prudent measure will not put American security at stake. It might not even disrupt ongoing anti-ISIS campaign at all, as Congress could simply approve an updated version of what we have now and continue on our merry way.
Yet I suspect—and I suspect opponents of this proposal realize—such a debate might demonstrate that most Americans lack the appetite we had 15 years ago for large-scale, limitless intervention at the president’s sole discretion. Captain Nathan Smith’s case should give us a chance to find out.
Bonnie Kristian is a fellow at Defense Priorities.
This piece was originally published by Real Clear Defense on July 19, 2016. Read more HERE.