Congress rejects growing effort to replace 2001 war authorization

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Article Summary
The US Senate today took up the post-9/11 military mandate for the first time since its enactment 16 years ago.

The US Senate today considered repealing the war authorization passed after the Sept. 11, 2001, terrorist attacks for the first time since its passage 16 years ago.

Despite a growing chorus of voices who worry that the original mandate against al-Qaeda has been twisted to justify US interventions across the Middle East and beyond, rescinding it proved too controversial in the middle of a global war against the Islamic State (IS). In the end, the amendment to the annual defense authorization bill from Sen. Rand Paul, R-Ky., failed 61-36.

“We have fought the longest war in US history under an original authorization to go after the people who attacked us on 9/11,” Paul said on the Senate floor before today’s vote. “That war is long since over, the war has long since lost its purpose and it’s long time we have a debate in Congress about whether we should be at war or not.”

Critics, however, forcefully argued that repealing the 2001 war authorization, along with the 2002 authorization against Saddam Hussein in Iraq, was ill-timed.

“It would mean we immediately need to begin winding down operations,” Senate Foreign Relations Committee Chairman Bob Corker, R-Tenn., said on the Senate floor. “It is not in our national security interests.”

Paul had threatened to hold up the defense bill unless the Senate leadership allowed the floor to vote on his amendment, which would repeal the George W. Bush-era war authorizations after six months. The broad 2001 authorization gives the president authority “to use 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.”

Despite the amendment’s defeat, a growing number of members of the House and Senate continue to argue that the 2001 war authorization is both overly expansive and outdated. They point out that both the Barack Obama and the Donald Trump administrations have used it as the legal basis to target IS and other terrorist groups across seven countries, despite their lack of involvement in the Sept. 11 attacks.

Rep. Barbara Lee, D-Calif., the only member of Congress to vote against the 2001 war authorization, called it a “blank check” at the time it was passed. After 16 years of war and counterterrorism operations in Afghanistan, Pakistan, Iraq, Syria, Yemen, Somalia and Libya, many other members have come around to her way of thinking.

In June, the House Appropriations Committee unexpectedly added an amendment from Lee to end the 2001 authorization in its annual spending bill for the Department of Defense. However, House Speaker Paul Ryan, R-Wis., removed the amendment before it came to the House floor.

“Unfortunately Speaker Ryan took it out in a very underhanded way,” Lee told Al-Monitor. “He just took it out in the middle of the night.”

Ryan has said that while he’s open to debating a new war authorization, the House likely wouldn’t take up the issue this year. Lee told Al-Monitor that she has worked with Paul on his Senate amendment.

“We’re building bipartisan support for this and sooner or later it’s going to happen,” Lee said.

Their detractors argue that repealing the 2001 war authorization without legislation to immediately replace it would pose a national security risk.

“I have long supported a new AUMF [authorization for the use of military force] — focused on defeating [the Islamic State] and radical Islamic terrorism — and I believe there should be an open debate in Congress on our wartime strategy,” Sen. Ted Cruz, R-Texas, said in a statement. “But simply repealing the 2001 and 2002 authorizations without providing for consideration of an alternative plan could put our brave servicemen and women in uniform at risk and jeopardize our current missions abroad.”

Others such as Sen. Chris Murphy, D-Conn., who offered an amendment to the defense authorization bill that would sunset the 2001 war authorization in three years, argued that it’s futile to expect Congress to get serious about a new war authorization until the current one is on the chopping block.

“I don’t think Congress is going to take an AUMF debate seriously until we sunset the existing AUMF,” Murphy told Al-Monitor.

While various members of Congress are proposing their own replacements, a proposed war authorization that explicitly targets IS has gained the most traction. Sens. Jeff Flake, R-Ariz., and Tim Kaine, D-Va., introduced the bill in May.

In addition to explicitly authorizing the president to attack the Islamic State, the Taliban and al-Qaeda and its affiliates, the bill would give legislators the opportunity to overrule the president if Congress deems that groups targeted by the executive branch are not “associated forces” of the three aforementioned groups. Those restrictions come amid signs that the Trump administration may seek to target Iranian forces in Syria and Iraq after the defeat of IS.

The Flake/Kaine bill would also require the president to submit a report to Congress if he targets a group outside of Afghanistan, Iraq, Syria, Somalia, Libya or Yemen. While Flake voted against Paul’s amendment, Kaine voted in favor as a means to hasten debate on his own proposal.

“The authorizations have essentially been interpreted first by the Bush administration, second by the Obama administration, now by the Trump administration in a very broad way,” Kaine said from the Senate floor Tuesday.

“I would argue that the current interpretation of the authorizations essentially allows an American president, without any approval from Congress, to wage war anywhere, against any terrorist group, for however long they want to. That was not the intention of the authorizations when they were originally drafted.”

However, even senators who want to repeal the 2001 war authorization without a replacement do not necessarily support the Flake-Kaine proposal in its current iteration.

“I have some concerns with Kaine-Flake, but I support a process that allows us to deal with that via some amendments,” Sen. Ben Cardin, D-Md., the top Democrat on the Senate Foreign Relations Committee, told Al-Monitor.

In particular, Cardin, who also voted for the Paul amendment, voiced concerns with the lack of stipulations on ground forces in the Flake-Kaine bill. Murphy voiced similar concerns.

“I think the Kaine-Flake [bill] is a vast improvement on what we have today, but I look forward to having a full debate to make it even better,” Murphy told Al-Monitor.

When Al-Monitor asked Murphy in August if he would support a war authorization that limits forces on the ground, he said he would “insist on it.”

Paul told Al-Monitor this week that he does not support the Flake-Kaine bill.

A similar debate over ground troop limitations ensured that a war authorization proposal from the Obama White House to target IS never gained traction in Congress. Congressional hawks did not want to include the proposed ground force limitations, while doves objected to the fact that the Obama proposal did not ensure limitations on which countries the United States would be allowed to target terrorist groups.

Furthermore, it remains unclear when — or if — the Senate Foreign Relations Committee will actually take up the Flake-Kaine bill. While Flake said Corker is “committed” to moving the authorization bill, the chairman has not announced a concrete date for a markup.

“We’re beginning the formal process of getting [Secretary of State Rex] Tillerson and [Secretary of Defense Jim] Mattis in specifically on that issue,” Corker told Al-Monitor when asked if he had a set date for a markup. “We want to get them up and then proceed with attempting to do that.”

Corker, however, already held a classified hearing on the subject in August where Tillerson and Mattis both testified.

Further complicating matters is the fact that on Tuesday the White House said it did not want Congress moving on a new war authorization, let alone terminating the current one. Trump, like Obama, maintains that the 2001 authorization allows him to carry out the anti-IS campaign.

And although Mattis and TIllerson told the Senate Foreign Relations Committee in August that they support congressional efforts to write a new authorization, Cardin said that the two have recently backtracked.

“I left [the August hearing] with the impression that there was room for Congress to work with the administration on authorization of force,” Cardin said on the floor today. “Just recently we received notice from Secretary Tillerson and Secretary Mattis that the president does not want Congress to adjust the authorizations because he has adequate authority to do what he needs to do.”

Bryant Harris is Al-Monitor's congressional correspondent. He was previously the White House assistant correspondent for Yomiuri Shimbun, Japan's largest newspaper. He has also written for Foreign Policy, Al Jazeera English and IPS News. Prior to his stint in DC, he spent two years as a US Peace Corps volunteer in Morocco. On Twitter: @brykharris_ALM, Email: bharris@al-monitor.com.

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