As we lurch through the second year of Trump administration, it’s hard to know whether to just give up the whole rule-of-law thing or rejoice at the very faint stirrings of conscience appearing on Capitol Hill.
Sign number one: The Senate Judiciary committee has approved a bill to protect the Mueller investigation from a presidential attempt to quash it. For now, the bill has no chance of passage; both Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan have made that clear, but the gesture is appreciated.
Sign number two: Republican Senator Bob Corker and Democratic Senator Tim Kaine have agreed on a bill that at least gestures toward Congress’s role as a check on executive war-making. The Corker-Kaine bill is designed to place the Trump administration’s ongoing military operations within at least the semblance of a constitutional framework.
Is it a step forward or a final surrender of congressional authority?
Congress’s war powers were not in good shape when Barack Obama left office; his administration used statutory double-talk to justify intervening in Libya, and, in its efforts against ISIL, stretched the two existing statutory authorizations almost to the ripping point. After Trump’s 2017 strike against Syria, things got worse: The administration pointedly refused to provide any claim of legal authority; the closest thing to a statement of war aims was a promise by United Nations Ambassador Nikki Haley that if Trump “needs to do more, he will.”
Last month, the administration responded to new reports that Bashar al-Assad had used chemical weapons with another missile strike on Syria. Defense Secretary James Mattis stepped up to offer a constitutionally preposterous justification: “As our commander in chief, the president has the authority under Article II of the Constitution to use military force overseas to defend important United States national interests. The United States has vital national interests in averting a worsening catastrophe in Syria, and specifically deterring the use and proliferation of chemical weapons.”
Um, no, Mr. Secretary, not so much. In my judgment, under both the Constitution and the War Powers Resolution of 1973, the president may legally use military force only when authorized to do so by Congress, or in immediate response to an attack on the United States, its forces abroad, or our treaty partners. By that measure, the Syria strikes were flatly unconstitutional.
Such authorization as our current military efforts possess comes from statutes passed by Congress in 2001 and 2002. The 2001 Authorization for the Use of Military Force authorizes force against “nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the 9/11 attacks, or who “harbored” those attackers. The 2002 AUMF authorizes the president to use “necessary and appropriate force” to “defend the national security of the United States against the continuing threat posed by Iraq” and enforce United Nations resolutions “regarding Iraq.”
Neither resolution mentions Syria; neither mentions new terrorist groups—such as ISIL—formed after the 9/11 attacks. Thus the Obama administration’s operations against ISIL, including those inside Syria, were already pushing the law to the breaking point. Trump’s direct attacks on Syria push them, as we say back home, way yonder too far.
Corker-Kaine seeks to remedy the fuzzy legal situation of our battle against nonstate organizations like ISIL. At the same time, it seeks to ensure that operations against terrorist groups cannot be leveraged into attacks on foreign states or governments.
As negotiated by the two senators, the bill would partially repeal the 2001 AUMF, leaving in place only the authorization of “necessary and appropriate force” against a few nonstate groups. The current 9/11 AUMF includes “nations” as potential targets if they “harbor” terrorist groups: This one explicitly says that terror groups targeted cannot include a “sovereign state.” Corker-Kaine would also completely repeal the 2002 AUMF. That statute mentions Iraq; creative executive-branch lawyers might use it as authority to attack a neighboring nation—say, Iran or Syria—the administration accuses of interfering in Iraq.
The bill also authorizes the use of force against a specific list of five additional terror groups, called “associated forces” because they must in some way be associated with the current groups and be fighting alongside them. (Thus, the president could not designate a South American guerrilla group, or the North Korean cheerleading squad, as an “associated force.”) Three of the groups are newish offshoots of Al Qaeda (in Arabia, Syria, and northwest Africa); also included are Al Shabaab, based in Somalia, and the Haqqani Network, which is based in Pakistan and fights in Afghanistan. The president can also designate other groups as “associated forces” within 30 days of passage of the resolution. The president can use force against these groups in Afghanistan, Iraq, Syria, Somalia, Yemen, or Libya. The president must report to Congress promptly if he chooses to designate any new group as an “associated force,” or chooses to authorize the U.S. military to combat “associated forces” in any other country.
Corker and Kaine (and other conscientious legislators) had tried to pass a similar bill during the Obama years; those drafts included a “sunset,” meaning that the authorization would lapse on a certain date—unless the president persuaded Congress to pass a new one. With the arrival of Trump, Republican interest in a “sunset” has apparently evaporated. Corker-Kaine instead sets a fixed term for its authorization; every four years—in January of every midterm-election year—the president would be required to submit a resolution to Congress asking the lawmakers to affirm, modify, or repeal the existing authorization. That resolution would not be subject to filibuster, and would be guaranteed a vote in both houses.
There’s a whoopee cushion in this chair, though. The historic practice has been that when a president seeks a new authorization (or wants important changes to an existing one), he has to ask Congress to pass a bill; under Corker-Kaine, the president is authorized to use force—and will not only remain authorized but will also be able to expand or change the authorization unless Congress passes a bill ordering him not to. Even if such a bill did pass, it would be subject to a presidential veto.
So in practice, the president will get his way on everything—unless a veto-proof majority of each chamber denies it to him.
That is, as Eliza Doolittle once said in a different context, not bloody likely.
The recurring authorization feature has spawned sharp pushback from elements of the academic and national-security community. (The designation of new “associated forces,” and new countries, is subject to the same kind of procedure; new designations will be upheld unless Congress passes a bill voiding it.) The bill, wrote Elizabeth Goitein of New York University’s Brennan Center, “would codify, not end, the forever war.” The New York Times said the bill was “too broad and could bless military operations in perpetuity”—and might even, the editors argued, “be used by the Trump Administration to go to war against Iran or North Korea.” Scott Anderson and Molly Reynolds of the Brookings Institution called the supposed congressional check on the executive “a fast track to nowhere.”
Bruce Ackerman of Yale Law School, who has crusaded for years against executive war-power lawlessness, warned in an email that, because the bill allows a president to veto a disapproval bill, Corker-Kaine “is an effort to repeal, and not merely (radically) reinterpret, the War Powers Resolution of 1973.” Stephen Vladeck, a University of Texas law professor who recently argued a military-law case in front of the Supreme Court, told me that passing Corker-Kaine would put an end to an important argument about the lawfulness of current efforts by essentially ceding the full power to the president. Bad as the status quo may be, Vladeck said, “legally the status quo means this debate goes on. Corker-Kaine means it won’t.”
In a Washington Post op-ed, Kaine wrote that the resolution was “a true bipartisan compromise.” He dismissed criticism that the bill would expand presidential power as “just false. Our proposal is a dramatic improvement over the current blank check that Congress has handed Trump.”
Sarah Peck, the communications director for Kaine, responded to the criticisms: “The resolution’s definition of associated forces is dramatically narrower than the current open-ended definition. Unlike the 2001 AUMF, Corker-Kaine explicitly says it can’t be used by the president to launch military action against other nations.” She added, “This is Congress’s best opportunity to prevent Trump from unilaterally launching a war against Iran, Syria, or North Korea.”
Though I haven’t found a lot of passionate adherents, Corker-Kaine does have its supporters. Bobby Chesney, a national-security and international law specialist at the University of Texas law school, told me that “the strongest case for Corker-Kaine” has to do with its reporting requirements, which should ensure that the public “going forward will know more than it currently does about which groups the government believes are covered by the AUMF.” In addition, he said, by putting an end to the 2002 Iraq AUMF, the bill would reduce the chance of the administration arguing that it already has authority from Congress to use force against Iran. (In this regard, the new bill’s “sovereign state” language would make it harder, not easier, to invoke against another country than the old one did.)
Matthew Waxman, a former George W. Bush official now at Columbia University Law School, told NBC News that many people might prefer a measure with an end date. “The political reality, though, is that a much more restrictive AUMF won’t be possible anytime soon, and we’ll be engaged in an indefinite war either way,” he said. “A new AUMF that includes strict congressional reporting and requires more frequent congressional reconsideration at least improves transparency and oversight.”
Nobody on either side really seems to think that passing this bill will materially affect the choices the nation makes going forward. Vladeck noted that the current resolutions are 17 and 16 years old. “Let’s imagine that if this is enacted, it’s going to be another 17 years before the forces align” to repeal or replace it, he said.
Melancholy as it seems, the real division of opinion in this dispute is between those who believe the war should go on without color of law, because authorizing it will set a malign precedent for later presidential war-making, and those who believe that it is important to create a structure of law, however chimerical, around the current anti-terrorism effort—to make the point, that is, that the Constitution governs, at least formally, even in 2018. Seventeen years of semi-secret “war,” against shadowy enemies and in pursuit of classified goals, have placed our system under intolerable strain. Virtually nothing is left of “law” in this area; the only question is what legal fiction we choose to describe this apparently multi-generational conflict.
The executive, and many in Congress, seem to agree that the Constitution is now best regarded as a kind of mildly demented national great-uncle—a treasured reminder of a simpler past, but of no real relevance to what grownups do in the present day. Corker and Kaine do deserve credit for keeping at least the idea of law in the dialogue.
Jack Goldsmith of Harvard Law School, who during the George W. Bush Administration forced the withdrawal of the infamous “torture memos,” wrote in an email that the debate over AUMF renewal is “political theater.” He wrote, “I do not think passage of the Corker-Kaine bill matters to anything real. The nation supports, or at least acquiesces in, the stealth Forever War, for better or worse.”
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