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."