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When the 116th Congress—including a Democrat-controlled House of Representatives—is sworn into office in a few weeks, there will be no shortage of pressing issues demanding the attention of legislators. These include perhaps the most solemn question facing any government: when and how to deploy the awesome power of the United States armed forces.
Few matters are as complex or as consequential. And Congress should not be shy. The Constitution grants competing powers in the realm of foreign affairs to Congress and the president, with the expectation—even the demand—of aggressive oversight. Having served at both ends of Pennsylvania Avenue, I understand that many in the White House will see this congressional role as a nuisance. But they would be well advised to welcome it, because a full partnership with Congress on national security matters will improve both the policies and their execution, while also beginning to restore the American people’s trust in Washington.
The administration of U.S. President Donald Trump has sorely lacked any such oversight in its first two years. Two recent news stories highlight the need for congressional investigations into matters affecting Americans overseas. One tells us that accountability for the deadly ambush in 2017 of U.S. troops in Niger is still a matter of dispute. And the other reports that the Army National Guard—apparently prompted by an article in The New York Times—is conducting its own investigation into whether a unit deployed to Afghanistan was appropriately trained and outfitted after its request for specific equipment had gone unmet.
Congress has fallen behind on meeting even its most basic oversight obligation, which is to assess the fitness of officials who would represent the United States overseas in diplomatic or military capacities.
Congress has fallen behind on meeting even its most basic oversight obligation, which is to assess the fitness of officials who would represent the United States overseas in diplomatic or military capacities. According to The Washington Post and the Partnership for Public Service, of the positions requiring Senate confirmation, 25 percent in the Department of Defense and nearly half in State and Treasury still have not been filled. In many cases, the Trump administration has not even submitted a nominee for the Senate to consider, preferring to leave the position in the hands of an unconfirmed, acting official. To force the administration to move on its historically slow effort to fill positions, the Senate could have withheld funding until these positions were filled. Instead, it inexcusably acquiesced in the administration’s failure to meet the most basic of responsibilities—and in so doing diminished the Senate’s constitutional authority and undermined our national security.
In recent weeks, the Senate has begun to show signs of willingness to assert its oversight powers, however cautiously. The horrific suffering in Yemen, and the murder of the journalist Jamal Khashoggi, apparently ordered by Saudi Crown Prince Mohammed bin Salman, at last compelled a bipartisan group of senators to exercise a rarely used authority. The senators forced a debate and vote to cut off U.S. funding for the ill-conceived Saudi-led war in Yemen. This is a good start on which the 116th Congress should build.
The executive and legislative branches must rebalance power to accord with the Constitution and the norms prior to this administration. Fortunately, much of this work can be done fairly simply. Congress can reassert its existing powers, including its authority to direct or withhold funds toward all operations, domestic and international. It should ask hard questions of the Trump administration, publicly and privately; and it should refuse to let the administration dictate which members of Congress get access to crucially important information, including intelligence, for the conduct of foreign affairs.
There is, however, one critical area where Congress may need to resort to legislation to ensure the effective conduct of U.S. foreign policy. During the Obama administration, the United States deployed troops to Syria to support Syrian efforts to liberate Raqqa from the Islamic State (also known as ISIS). That deployment was consistent with the Authorization for the Use of Military Force (AUMF) that Congress enacted and President George W. Bush signed on September 18, 2001. Today the Trump administration talks openly about diverting those troops to counter Iranian regional aggression. No credible reading of the 2001 authorization would include countering Iranian aggression under its auspices.
To fully reclaim its proper constitutional role in the conduct of national security matters, Congress therefore should vote to replace and improve the 2001 Authorization for the Use of Military Force on the 9/11 perpetrators and repeal the 2002 Authorization for the Use of Military Force against Iraq.
Several members of Congress—led most vigorously by Tim Kaine, the Democratic senator from Virginia—have introduced new AUMFs. The act of taking up, debating, and enacting a new AUMF sends a message in many ways more important than the content of the proposal itself. Successive Congresses have allowed the Bush-era AUMFs to continue without debate, update, or change for more than 17 years. Debating and replacing them would seriously reinvigorate Congress’s role in national security matters.
A new AUMF would continue to be designed for use against terrorist organizations, such as al Qaeda or ISIS, and not states, such as Iran. For this reason, it should spell out against whom it is authorizing the president to use force, making sure to include ISIS, al Qaeda, and certain associated forces that President Barack Obama identified and federal courts affirmed. If our country’s leaders decide that the use of force is necessary against Iran, the American people are right to expect such a decision to be debated on its own merits.
With the scope of authority tightly defined, Congress would not need to seek a geographic limitation on where that authority could be exercised. Congress cannot today anticipate where an ISIS threat will materialize, so it should not try to place geographic limits on where outside the United States we may have to use force.
A new AUMF should make clear, however, that it is not an authorization for large-scale deployments that drain U.S. resources; create moral hazard for countries such as Iraq, which then fail to invest in their own security institutions; and overemphasize counterterrorism operations at the expense of contending with a rising China and a resurgent Russia. President Obama once proposed that any new AUMF prohibit “enduring offensive ground operations.” President Trump has expressed skepticism, too, about the value of keeping boots on the ground in places such as Iraq and Afghanistan. One can imagine a variety of ways in which a new AUMF could usefully restrain such deployments in response to particular terrorist threats.
Finally, Congress should insist on a time limit, or sunset, for any new AUMF. For more than 17 years, Congress has proven unwilling to take the politically difficult step of reexamining the war against al Qaeda and its associated forces. A time-limited AUMF—perhaps five years—will ensure that future Congresses continue to meet the responsibilities envisioned by our founders.
To debate and reauthorize the use of military force will not come easily. I know this from experience. For more than 17 years I have been closely involved in the development and use of the existing AUMFs. I led staff negotiations for the Senate majority leader on the 2001 and 2002 AUMFs, and I developed policies for the use of those authorities as deputy national security adviser and chief of staff in the Obama White House. When the regime of Syrian President Bashar al-Assad unleashed chemical weapons in 2013 and President Obama requested new authority to use force to respond, Congress balked. Any new AUMF will be particularly difficult now, given the likely opposition from the Trump White House. But oversight is not a choice for Congress to make. It’s what the Constitution demands—and what the American people deserve.