Move to Authorize Force Against ISIS Unlikely in Lame Duck

White House invites Congress to formally authorize strikes in Iraq and Syria, but neither branch appears eager to make the first move.

WASHINGTON, DC - SEPTEMBER 16: Senate Armed Services Committee member Sen. Tim Kaine (D-VA) attends a hearing about the Islamic State of Iraq and the Levant in the Hart Senate Office Building on Capitol Hill September 16, 2014 in Washington, DC. Senators questioned the top military and civilian leaders about the threat posed by the terrorist group calling itself the Islamic State. (Photo by Chip Somodevilla/Getty Images)
National Journal
Alex Brown and James Oliphant
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Alex Brown James Oliphant
Nov. 12, 2014, 4:26 p.m.

Con­gress has been giv­en its most ex­pli­cit in­vit­a­tion yet from the White House to au­thor­ize the mil­it­ary strikes against Is­lam­ic State forces in Syr­ia and Ir­aq, but wheth­er law­makers will seize the op­por­tun­ity to re­claim their war-mak­ing power is an­oth­er mat­ter.

It seems al­most cer­tain that noth­ing will be done dur­ing the busy lame-duck ses­sion that began this week, ac­cord­ing to mul­tiple aides close to the is­sue, even though some ar­gue the Obama ad­min­is­tra­tion has already ex­ceeded its leg­al au­thor­ity un­der the War Powers Act to con­duct op­er­a­tions against the Sunni mil­it­ants.

Wait­ing would kick the is­sue to the new Re­pub­lic­an-con­trolled Con­gress next year, and while sev­er­al GOP mem­bers have ad­voc­ated for a vote, there ap­pears to be a wait-and-see at­ti­tude on the part of lead­er­ship. Speak­er John Boehner wants spe­cif­ic lan­guage from the ad­min­is­tra­tion be­fore the House moves on the mat­ter, not­ing that past au­thor­iz­a­tions, such as the one fol­low­ing the 9/11 at­tacks, ori­gin­ated with the ad­min­is­tra­tion. “The ball’s in their court,” a Boehner aide says.

The prob­lem is, there’s a tre­mend­ous in­cent­ive for the White House to do noth­ing. Since Pres­id­ent Obama raised the mat­ter of a new or up­dated Au­thor­iz­a­tion for Mil­it­ary Force in a press con­fer­ence last week, ad­min­is­tra­tion of­fi­cials have re­peatedly in­sisted that Pres­id­ent Obama cur­rently has the leg­al au­thor­ity to pro­sec­ute the con­flict against the Is­lam­ic State. “We have what we need,” State De­part­ment spokes­wo­man Jen Psaki told re­port­ers. “But that doesn’t change the fact that we’re strongest as a na­tion when the ex­ec­ut­ive branch and Con­gress work to­geth­er.”

In­deed, the ra­tionale for go­ing to Con­gress for an AUMF has largely been ex­pressed in polit­ic­al terms, not leg­al ones. White House spokes­man Josh Earn­est said last week that it would “send a very clear sig­nal to our al­lies around the globe that Con­gress and the White House are united in this ef­fort.” Left un­said is that it would also res­ult in Re­pub­lic­ans tak­ing more own­er­ship of the war.

That pro­spect left some Re­pub­lic­ans and Demo­crats skit­tish in Septem­ber when the House and Sen­ate each by­passed a broad­er de­bate on the scope of the con­flict in fa­vor of a sim­pler vote on fund­ing mod­er­ate Syr­i­an rebels. Even that pro­vi­sion came with an ex­pir­a­tion date and was tucked in­to a lar­ger spend­ing bill so as to lessen its po­tency as a polit­ic­al weapon down the line.

It might be harder to do that with an up-or-down vote on an­oth­er ex­ten­ded war in Middle East, one that the Pentagon es­tim­ates could take years or even dec­ades. Some con­gres­sion­al Re­pub­lic­ans flush with midterm suc­cess can re­mem­ber how their vote in 2002 to au­thor­ize the Ir­aq War was used against them four years later when the party lost both cham­bers. Add to the mix that sev­er­al po­ten­tial GOP pres­id­en­tial con­tenders are in the Sen­ate, in­clud­ing Sens. Rand Paul of Ken­tucky, Ted Cruz of Texas, and Marco Ru­bio of Flor­ida. Paul and Cruz voted against arm­ing the rebels. Ru­bio voted in fa­vor.

Paul has been openly crit­ic­al of the White House’s leg­al jus­ti­fic­a­tion for the battle against the Is­lam­ic State, ar­guing that it can no longer rely on the AUMF passed in 2001 for the in­va­sion of Afgh­anistan and one the fol­low­ing year on Ir­aq. Bey­ond those au­thor­it­ies, Paul, like many in Con­gress, be­lieve the pres­id­ent is sub­ject to the re­quire­ments of the War Powers Act, which calls for the end of mil­it­ary op­er­a­tions with­in 90 days if con­gres­sion­al ap­prov­al hasn’t been se­cured. That dead­line re­cently passed for the con­flict in Ir­aq and Syr­ia, but Obama, as pres­id­ents have be­fore him, re­jects the act’s lim­it­a­tions, ar­guing that the Con­sti­tu­tion gives him broad powers to pro­tect the na­tion. He angered many in Con­gress in 2011 when he seemed to pay little heed to the act as the U.S. helped bring down the Muam­mar al-Qad­dafi re­gime in Libya.

Paul be­lieves Con­gress can’t wait for Obama to pro­pose a new au­thor­iz­a­tion. “It has to come from the Hill. I don’t think the White House cares enough to push Con­gress in­to do­ing it,” a Paul aide says. “Something like this is go­ing to have to be put on the agenda by the lead­er­ship.” Paul’s con­cerns were echoed by a House Armed Ser­vices Com­mit­tee Demo­crat­ic aide, who fears that any­thing com­ing from the White House will cat­egor­ic­ally be re­jec­ted by the GOP.

But Tim Kaine, the Demo­crat­ic sen­at­or from Vir­gin­ia who also has been heav­ily crit­ic­al of the White House’s as­ser­tions of its leg­al au­thor­ity, dis­agrees. In a speech Wed­nes­day at the Wilson Cen­ter in Wash­ing­ton, Kaine said it’s Obama’s duty to take his case to the Hill. “If the pres­id­ent had really pushed Con­gress to have this de­bate and vote be­fore we went in­to re­cess, he would have got­ten au­thor­iz­a­tion,” Kaine said. “This works so much bet­ter when the pres­id­ent sends up the draft au­thor­iz­a­tion. Be­cause if he doesn’t, then you have six au­thor­iz­a­tions.”

Kaine ar­gues that Con­gress needs to act now, dur­ing the lame duck, be­cause the coun­try, in his eyes, is cur­rently fight­ing an il­leg­al war. And there will be mul­tiple op­por­tun­it­ies for Con­gress to act. One could in­volve tack­ing a pro­vi­sion onto the an­nu­al de­fense au­thor­iz­a­tion bill. An­oth­er could be pack­aging the AUMF with a vote to again au­thor­ize arm­ing the mod­er­ate Syr­i­an rebels.

But the more wide­spread view is that there are too many polit­ic­al and lo­gist­ic­al hurdles for a vote to take place in the com­ing weeks. For one thing, there are widely dif­fer­ing views on what form the au­thor­iz­a­tion would take. Would it be re­stric­ted to at­tacks against only the Is­lam­ic State or its af­fil­i­ates? Would it con­fine the U.S. to op­er­a­tions only in Ir­aq and Syr­ia? (What if the fight spreads to Le­ban­on?) Would it carry a time lim­it?

Per­haps the most di­vis­ive is­sue in­volves wheth­er to place some sort of re­stric­tion on the use of Amer­ic­an ground troops in the re­gion—something that could be op­posed by the White House on the prin­ciple of al­low­ing the Pentagon as much dis­cre­tion as pos­sible to con­duct the war. Hawk­ish mem­bers such as Sen. John Mc­Cain of Ari­zona, the new GOP chair­man of the Armed Ser­vices Com­mit­tee, would give the ad­min­is­tra­tion wide lee­way in that re­gard, but pro­pos­als by Kaine and Rep. Adam Schiff of Cali­for­nia would al­low for ground troops only in nar­row cir­cum­stances.

There’s some pre­ced­ent. Last year, after Obama went to Con­gress for ap­prov­al to strike the Bashar al-As­sad re­gime in Syr­ia, the Sen­ate For­eign Re­la­tions Com­mit­tee craf­ted a bill (wa­ter­ing down the White House’s ini­tial pro­pos­al) that pro­hib­ited the use of ground troops, con­fined the con­flict to Syr­ia, and set a 60-day lim­it for ac­tion, with the pos­sib­il­ity of a 30-day ex­ten­sion. Sen. Bob Cork­er of Ten­ness­ee, who helped draft the tightly tailored au­thor­iz­a­tion, will chair the com­mit­tee in the new Sen­ate. But he—and oth­ers—will have to keep in mind that the White House will have little reas­on to sign any­thing it finds un­duly re­strict­ive.

There will also be pres­sure to use the oc­ca­sion to re­vise—or as the pres­id­ent has said, “right-size”—the 2001 AUMF and re­peal the Ir­aq War AUMF out­right. Crit­ics such as Kaine say the 2001 au­thor­iz­a­tion has been stretched and dis­tor­ted bey­ond its in­ten­ded pur­pose—elim­in­at­ing al-Qaida and the Taliban in Afgh­anistan and Pakistan—to give leg­al cov­er to just about any ac­tion the United States takes against a ter­ror­ist cell any­where in the world. Without changes, they ar­gue, it jus­ti­fies open-ended mil­it­ary ac­tion in per­petu­ity and against threats that the Obama ad­min­is­tra­tion won’t even pub­licly dis­close. But to date, there’s been little ap­pet­ite in Con­gress for re­vis­it­ing it.

Steph­en Vladeck, a pro­fess­or at Amer­ic­an Uni­versity, is one of a num­ber of leg­al schol­ars who this week offered their own prin­ciples for a new AUMF. Vladeck says the 2001 AUMF should be amended with a “sun­set” pro­vi­sion that would force a fu­ture Con­gress to de­bate its mer­its anew. Its time, he said, for law­makers to as­sert their in­sti­tu­tion­al check on the pres­id­ent’s power or risk los­ing it al­to­geth­er. “If Con­gress can reach con­sensus on any­thing, I hope it’s this,” he says. “At the end of the day, Con­gress fails to do so at its own per­il.”

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