How Biden is Shaping Future Use of Military Force Authorities

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Pulitzer Prize Winning Journalist Walter Pincus is a contributing senior national security columnist at The Cipher Brief. He spent forty years at The Washington Post, writing on topics from nuclear weapons to politics.  He is the author of Blown to Hell: America’s Deadly Betrayal of the Marshall Islanders (releasing November 2021)

OPINION — Last Tuesday, Deputy Secretary of State Wendy Sherman told the Senate Foreign Relations Committee that President Biden, who served for 36 years in the Senate, has committed “to work with Congress to ensure that outdated authorizations for the use of military force (AUMFs) are replaced with narrow and specific frameworks to ensure we can continue to protect Americans from terrorist threats.”

Under the U.S. Constitution, war powers are essentially divided between Congress and the President.  Article I gives Congress the sole power to declare war as well as raise and support the armed forces. However Article II gives to the President, as Commander in Chief, the authority to employ U.S. forces in military actions which Presidents have done with great frequency since 1964.

The issue before the committee last week was the repeal of two former AUMFs which no longer have relevance since they concerned taking action against Iraq under Saddam Hussein who died on December 30, 2006.

One was the 1991 joint resolution that supported then-President George H. W. Bush’s decision to use American forces to help eject Iraq’s military from Kuwait; the other was the 2002 joint resolution that backed then-President George W. Bush’s invasion of Iraq to eliminate Saddam Hussein’s alleged stock of weapons of mass destruction [which did not exist].

Remaining in force would be a third AUMF, passed in 2001, a week after the 9/11 attacks of the World Trade Center in New York City and the Pentagon, which gave President Bush authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

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For 20 years, the 2001 AUMF has served as the primary legal basis for American military operations in at least seven countries against an array of terrorist organizations. The names of some are even classified and one or more of these groups did not exist when 9/11 took place.

In 2018, Sen. Bob Corker (R-Tenn.), the then-chairman of the Senate Foreign Relations Committee, unsuccessfully tried to narrow the 2001 AUMF after it was used by the Trump administration to justify an attack on Syrian government facilities.

At last Tuesday’s hearing, Deputy Secretary Sherman outlined several ways to revise or replace the 2001 AUMF including “establishing a mechanism to add [terrorist] groups beyond those that may have been identified by name in the text of the AUMF…Establish a mechanism to add countries in which the use of force is authorized against particular groups, and to have a periodic review of groups and countries.”

Listening to the hearing, Sherman took me back more than 50 years when she told the committee, “If we do need additional authority to defend our people, we will not hesitate to come back to Congress to seek those authorities.”

In 1969, with the Vietnam War underway, I was working for the Senate Foreign Relations Committee running an investigation into American troops and bases abroad, not just in Southeast Asia but in all parts of the world. Sen. J. W. Fulbright (D-Ark.), then-chairman of the committee, had set up the investigation to determine whether the stationing of U.S. forces in foreign countries or even the carrying out of joint exercises with other countries, represented commitments to those countries made without congressional authorization. Some of those countries that hosted American bases were run by dictators, creating the impression that the U.S. supported their oppressive regimes.

Fulbright told me he initiated the investigation as a direct result of his earlier role in assisting then-President Lyndon Johnson in getting Congress to approve the August 1964, Tonkin Gulf Resolution. That controversial resolution authorized President Johnson to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression” by the communist government of North Vietnam.

Back in the late 1960s, Fulbright told me that to get his support for the Tonkin Gulf Resolution, Johnson had told him that up to 125,000 American forces would be deployed to Vietnam and the war would be won. Johnson also promised he would come back to Congress for a declaration of war if he needed more troops. However, by early 1969, without seeking any new congressional authority, Johnson sent some 500,000 American troops to Vietnam and no victory was in sight.

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If this sounds similar to the recent U.S. experience in Iraq, there is one other painful parallel to the past. The Tonkin Gulf Resolution was triggered primarily by reports of a North Vietnamese gunboat allegedly attacking a U.S. Navy destroyer, which turned out not to be true, much like Saddam Hussein did not possess the weapons of mass destruction that the Bush administration claimed he had in 2002.

The Vietnam War lasted ten years and resulted in 58,000 American military deaths and 150,000 wounded without Congress ever voting an actual Declaration of War. In response, Congress in 1973 passed a joint resolution which was titled the War Powers Act, which requires a President to consult with Congress prior to using military forces and then notify Congress within 48 hours whenever those forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The War Powers Act became law after Congress overrode its veto by then-President Richard Nixon, who claimed its requirements limited his Article II powers as commander-in-chief.

Since 1973, Presidents have generally followed requirements of the War Powers Act, but claimed they were acting “consistent with” rather than “pursuant to” the provisions of the act. Sometimes they have sought congressional approval, often not, but none has gone to Congress seeking a declaration of war.

President Biden, as Senator, criticized President Bill Clinton for sending armed forces to Haiti and Kosovo without congressional approval. As chairman of the Senate Foreign Relations Committee in 2007, Biden responded to the George W. Bush administration’s talk about taking action against Iran’s nuclear program saying, “The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Biden’s air strikes against Syria in February 25, and June 27, against facilities used by Iran-backed militias along the Iraq-Syria border were justified under the President’s Article II powers as described in letters later sent to Congress. For example, the President’s June 29 letter informing Congress was sent to House Speaker Nancy Pelosi and said the strikes two days earlier were carried out “to protect and defend the safety of our personnel, to degrade and disrupt the ongoing series of attacks against the United States and our partners, and to deter the Islamic Republic of Iran and Iran-backed militia groups from conducting or supporting further attacks on United States personnel and facilities.” Notice the inclusion of Iran in the justification language.

Biden added that he had undertaken these actions “pursuant to my constitutional authority to conduct United States foreign relations and as Commander in Chief and Chief Executive.”  The report itself was done “consistent with the War Powers Resolution,” and accompanied by a classified annex, according to the letter.

On that same day, June 29, two days after Biden’s attacks on the Iraq-Syrian border, the House used an expedited procedure to vote to repeal the 2002 AUMF with a bipartisan, two-thirds majority. Earlier, on June 17, after a several hour-long debate, the House repealed the 1991 AUMF, with a 268-to-161 bipartisan majority.

On Wednesday, the Senate Foreign Relations Committee, by a 14-to-8 vote, approved the joint resolution repealing both the 1991 and 2002 AUMFs. Republican opponents to the measure included Sen. James Risch (R-Idaho), the ranking member, who used an argument employed by GOP House members, that repealing old, irrelevant AUMFs would somehow be read by America’s opponents as a sign of military weakness. Sen. Ted Cruz (R-Texas) took it a step further. He said the Biden administration’s support of the AUMF repeals was part of its policy of catering to Iran to ease the way for the U.S. to rejoin the nuclear deal.  In short, don’t expect too much Republican support when the joint resolution reaches the Senate floor.

However, the main takeaway from all this is that President Biden has thrown his support behind efforts to replace the past White House fixed views of presidential war powers with legal authorities that are more tailored to current and possible future military activities. Hopefully, Congress will also now act as a responsible partner. That means not only using its powers of investigation and public hearings to explore the workings of current policies, but also to look ahead and explore possible new threats that could end up facing U.S. national security policymakers.

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