The Biggest Change In a Sanders Administration Might Be a New Definition For ‘Hostilities’

Democratic presidential candidate Sen. Bernie Sanders, I-Vt., speaks at a campaign rally Monday, March 2, 2020, in St. Paul, Minn.

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Democratic presidential candidate Sen. Bernie Sanders, I-Vt., speaks at a campaign rally Monday, March 2, 2020, in St. Paul, Minn.

If Sanders sticks with his own precedent in the Senate, he could reshape American military engagement.

Sen. Bernie Sanders, I-Vt., isn’t offering vastly new prescriptions for America’s foreign policy. His administration might be more restrained, more liberal, more focused on diplomacy than military might — but most of the tools the United States uses under President Trump, including targeted killing in limited circumstances, would remain on the table. 

But the Democratic frontrunner’s Senate record suggests that his presidency could still reshape American military engagement by refining the definition of “hostilities” — the legal standard by which the United States defines whether it is at war, with all of the constitutional strictures that go along with it.

Under the 1973 War Powers Act, the president must seek authorization from Congress to bring the United States into “hostilities,” a word the act leaves undefined. Administrations of both parties have since launched military interventions without congressional approval, explaining whatever combat ensued was not actually “hostilities.” In 2011, President Barack Obama argued that his bombing campaign in Libya did not require Congressional authorization because “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.”

But in 2018, Sanders spearheaded legislation that offered a more limited definition of the word. He insisted that U.S. support to Saudi Arabia in its campaign against Houthi rebels in Yemen qualified under the War Powers Act. That assistance — intelligence, targeting assistance and, at one point, aerial refueling — represents a much narrower definition of hostilities than “boots on the ground.”

The Trump administration argued that the support did not meet the legal threshold that would require the administration to seek a war authorization. Congress passed Sanders’ legislation, although Trump vetoed it and lawmakers lacked the two-thirds majority needed to override him. 

But the Pentagon still backed away from the support it was giving Riyadh, and Sanders has claimed that as a victory in reclaiming Congress’s “constitutional responsibility over war making.” 

A Sanders administration that adhered to that standard would need to seek specific congressional approval for each of the myriad of counterterrorism missions and spot engagements across the globe. (Sanders has already said he was “wrong” to vote for the 2001 authorization  that the Obama and Trump administrations have used to justify missions everywhere from Somalia to Afghanistan, and in 2017 voted to repeal the blanket authorization as part of a failed 2017 effort led by Sen. Rand Paul, R-Ky.)

President Sanders, in theory, would have required congressional authorization for the drone strike that killed Qassem Soleimani, or the airstrikes on Syria in retaliation for President Bashar al-Assad’s use of chemical weapons.

“If military force is necessary, Bernie will make sure he acts with appropriate congressional authorization, and only when he has determined that the benefits of military action outweigh the risks and costs,” the campaign told The New York Times

That, in turn, could drastically reduce America’s farflung military operations. Some members of Congress have struggled for years to update the 2001 Authorization for the Use of Military Force that has been invoked to cover operationsin more than a dozen countries, and campaigns against al-Qaeda, ISIS, and other jihadist groups. Republicans and Democrats agree it needs to be updated, but they’ve never been able to agree on new terms. 

It’s not clear how Congress would respond if asked to consider individual military engagements across the globe. Such debates take up bandwidth on the legislative calendar, and can be politically risky. 

Broadly, Sanders has called for a more restrained use of the American military, and when it is used, for it to be paired with diplomatic and economic efforts.

“Far too often, American intervention and the use of American military power has produced unintended consequences which have caused incalculable harm,” he said in a 2017 foreign policy speech. “Yes, it is reasonably easy to engineer the overthrow of a government. It is far harder, however, to know the long term impact that that action will have.”

But Sanders is not a pacifist, and has voted in favor of limited uses of the American military in the past, typically on humanitarian grounds. He supported using U.S. aircraft to halt a genocide in Kosovo and Bosnia-Herzegovina during the Clinton administration. He supported a U.N. no-fly zone over Libya before Obama’s intervention. And alongside almost every other member of Congress, he voted in favor of the 2001 AUMF

In the same New York Times survey, Sanders said he would consider using of military force for humanitarian intervention and to prevent a nuclear weapons test by either North Korea or Iran. And he has said that he would continue to use drones, one of the most controversial military tools of the so-called war on terror, “selectively and effectively.” 

In addition to his work on Yemen and more recent efforts to curtail Trump’s ability to go to war with Iran, Sanders opposed sending U.S. forces to Kuwait in 1991 and voted against the Iraq War in 2002.

Past presidential candidates have run on a platform of empowering Congress, only to flex the executive’s institutional muscles once faced with the complexities of being commander in chief. 

“The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” then-candidate Barack Obama said in 2008. “And that’s what I intend to reverse when I’m president of the United States of America.”

Yet in 2014, the Obama White House announced its theory that it did not need Congress’s approval to fight the Islamic State in Syria because the 2001 AUMF already covered the group — then and now a controversial interpretation — in part because of “the administration’s perception that Congress was unable to function as a competent governing partner,” according to Charlie Savage’s 2017 book Power Wars.

The question for a President Sanders will be the same as any president who comes to Hill asking for permission: What if they say no?

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