Pentagon and Hill Officials Say They’re Still in the Dark On Obama's New War Powers
When and how will a new authorization for the use of military force against ISIS get drafted? By Molly O’Toole
President Barack Obama said drafting new war powers for the fight against the Islamic State is one of his top priorities for working with Congress before the fast-approaching end of the year.
“I'm going to begin engaging Congress over a new Authorization to Use Military Force against ISIL. The world needs to know we are united behind this effort, and the men and women of our military deserve our clear and unified support,” he said the day after the midterm elections. “The idea is to right-size and update whatever authorization Congress provides to suit the current fight, rather than previous fights,” he continued. “So it makes sense for us to make sure that the authorization from Congress reflects what we perceive to be not just our strategy over the next two or three months, but our strategy going forward.”
But senior officials at the Pentagon and on the Hill say they don’t know what the administration will propose for a new Authorization for the Use of Military Force (AUMF), or when the White House will propose it -- if at all.
In the absence of a blueprint from the White House, several lawmakers have drafted their own versions of a new AUMF.
On the Hill, a handful of mostly Democratic lawmakers are pushing for the AUMF to be considered in the lame duck, arguing that votes more than a decade ago cannot authorize the current military operation and that waiting months to debate the ongoing military operation constitutes an abdication of Congress’ responsibility. On the other side, mostly Republican lawmakers are arguing that outgoing members should not be weighing in on a war expected to continue for years.
Members of both parties have suggested that the president should be the one to draft an AUMF – in no small part because lawmakers remain unclear on what they would be authorizing.
One Democratic aide described Obama’s statement about engaging Congress as a “very oblique ask.” Michael Steele, spokesman for House Speaker John Boehner, R-Ohio, told Defense One, “Traditionally, a commander in chief who wishes to have an authorization would write it and submit it and work actively on its behalf … At this point we believe it would be best for the White House to draft and submit an AUMF.”
While the speaker believes the president currently has the authority, Steele said, “he is less clear on whether he has the authority to do what will be necessary to win.”
But given the sheer amount of legislation remaining this year and the shift in the balance of power toward Republicans following the midterm elections, it’s highly unlikely a new AUMF will even be considered this Congress, much less passed.
For the fight against ISIS in Syria and Iraq, Obama is relying on his Article II powers under the Constitution, which designate the president as commander in chief of the Armed Forces and give him the authority to use military force to defend the U.S. The administration also says it has specific statutory authorities provided by Congress in the 2001 AUMF, put in place in the fight against al-Qaeda after the 9/11 attacks, as well as the 2002 AUMF, enacted prior to the 2003 invasion of Iraq. Neither included a sunset date, so they will not expire without congressional action.
But many lawmakers are asking: How can we draft an AUMF if we don’t know what we’re authorizing?
Obama has authorized targeted air strikes in Iraq and Syria, U.S. troops are training and advising Iraqi and Kurdish forces and plans are underway to train and equip moderate Syrian rebels. But he has vowed not to put large numbers of U.S. troops on the ground.
“How can you successfully execute the mission you’ve been given – to 'degrade and ultimately destroy' ISIL – when some of your best options are taken off the table?” House Armed Services Committee Chairman Rep. Buck McKeon, R-Calif., asked Defense Secretary Chuck Hagel and Joint Chiefs Chairman Gen. Martin Dempsey during a hearing last week on the status of the military campaign against the terrorist group.
"We may very well be considering a new AUMF in the near future, but I would offer a warning that, should the AUMF proposed by the president contain such limitations, it will be DOA [dead on arrival] in Congress,” McKeon said. “I will not support sending our military into harm’s way with their arms tied behind their backs.”
Dempsey said he is considering deploying limited U.S. troops to help Iraqi forces go on the offensive to retake “complex terrain” under Islamic State control, such as the northern city of Mosul and along the border with Syria. “I’m not predicting at this point that I would recommend that those forces in Mosul and along the border would need to be accompanied by U.S. forces, but we’re certainly considering it,” he said.
Rep. Mac Thornberry, R-Texas, who is expected to be the next chairman of the House Armed Services Committee, asked Hagel about a new AUMF. “Is this administration going to propose language and send it up to us? And if so, when?” Hagel responded:
“Congressman, I don’t know specifically what they are going to propose. I don’t know specifically if they are going to send it up as a legislative proposal.”
Typically, an interagency lawyers group, led by the National Security Council staff, comes together to review the issue, develop a consensus and offer an opinion. Such a group took on whether the 2001 AUMF could apply to the current operation and eventually came to a consensus after weeks of deliberation that it was legally available for policy makers to use. But a senior defense official told Defense One, “I would say it’s not a strong case … it’s not a knock-out.”
“It comes down to almost to issues of legitimacy and should the president be using force and bringing America into conflict without the support and vote from Congress,” the official said.
To the official’s knowledge, an interagency lawyers group has not been asked to write a new AUMF. “I don’t know if they’re going to do that,” the official said.
“DOD is not currently working on a draft AUMF at this time,” a defense official told Defense One on Monday. NSC Spokeswoman Bernadette Meehan said, "We continue to have conversations with members of both parties regarding an AUMF to suit the current fight and our current strategy against ISIL."
Sen. Tim Kaine, D-Va., a member of both the Armed Services and Foreign Relations committees, says he believes the president does want a new authorization.
“I think he definitely wants congressional authorization,” he said. “He is a constitutional lawyer, and he’s very cognizant of these precedents and the precedents they may set for future executives. I think he knows that the mission as it is now has really grown, and does need a new authorization.”
Then why doesn’t the president draft one? “That’s a good question,” Kaine said. “I do think that’s preferable … but, at the end of the day whether they draft one, or we draft one, we get to the same point. Time is of the essence, we ought to be doing this now.”
Sen. Robert Menendez, D-N.J., chairman of the Foreign Relations Committee, which would have primary jurisdiction over a new AUMF, has been working on his own proposal, gauging support from members.
Sen. John McCain, R-Ariz., the likely next chairman of the Armed Services Committee, said the White House has not been in touch with the Armed Services or Foreign Relations committees regarding a new AUMF.
“Of course not,” he said. “They have not spoken nor have they sent over any blueprint for what they want to see.” When asked if that is because the strategy is evolving, McCain said, “Well, they’ve had plenty of time to evolve … there is no strategy.”
McCain said the president has sufficient authority for the current operation in Iraq and Syria. “I don’t want to put restrictions on the president of the United States,” he said. “I’m not against any AUMF … but I’d have to see it.”
“He should send over what he’s proposing, that’s the way this thing works,” McCain said. As to why the president has not done so, he said, “I don’t know. It makes you wonder if he’s serious … it makes it much more difficult.”
The only aspect of the Islamic State strategy that must be addressed in the lame duck is the authorization for DOD’s program to train and equip moderate Syrian rebels, which expires on Dec. 11.
Some lawmakers, including Kaine, have indicated they would consider a number of options to force the debate -- including adding a new AUMF as an amendment to the annual National Defense Authorization Act, though it’s unclear whether there will be an open amendment process for that bill.
Others, such as McKeon, have warned against doing that. “The chairman really believes that putting an AUMF on this NDAA or any future NDAA is not the way to go,” HASC spokesman Claude Chafin said. “This is an important decision that ought to have protracted debate.”