Democrats push Biden on returning war powers authority to Congress
By Karoun Demirjian,
Reuters Reuters
As Congress this week renews what’s become a perennial debate over war powers, lawmakers are focused on the White House, where many Democrats hope the new president will break with recent history and back their cause.
Over three-plus decades in the Senate, now-President Biden repeatedly criticized his predecessors for deploying troops and attacking America’s adversaries without first seeking congressional consent.
But while his administration has committed to “ending the forever wars” and replacing use-of-force authorizations “with a narrow and specific framework,” there are few specifics on what the new commander in chief is willing to endorse — prompting fears of an intraparty fight as some congressional Democrats say they shouldn’t wait for the president’s permission to move forward with legislative measures that already have bipartisan support, while others signal that without Biden’s backing, likely nothing will get done.
“Would we be able to pass these in the Senate if the Biden administration’s not supporting those efforts?” Sen. Ben Cardin (D-Md.), who has long advocated that Congress more emphatically wield its foreign-policy power, said in an interview. “It’s going to be a challenge.”
A spokesman for the National Security Council declined to detail or elaborate on the White House’s thinking.
[Analysis: How Biden’s view on war powers has evolved]
Biden’s election was seen as a breakthrough for backers of repealing what many lawmakers consider outdated authorizations for the use of military force — AUMF for short — after years of resistance from former presidents Donald Trump and Barack Obama.
As a senator, Biden objected to George H.W. Bush removing Gen. Manuel Noreiga from power in Panama and voted against the 1991 Gulf War authorization. He criticized Bill Clinton for sending forces to Haiti and Kosovo without congressional buy-in. And when George W. Bush talked about bombing Iran in 2007, Biden, then-chairman of the Senate Foreign Relations Committee told the Boston Globe that “the Constitution is clear: except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”
The House launched this year’s debate with a measure from Rep. Barbara Lee (D-Calif.) to repeal the 2002 authorization, which Congress passed to enable military operations against Saddam Hussein’s regime in Iraq. In the years since, presidents have used it to justify operations against terrorist groups there and in defense of the 2020 strike to kill Iranian Gen. Qasem Soleimani in Baghdad.
The House has passed Lee’s repeal on a bipartisan basis before. In the Senate, the chief bipartisan proposal from Sens. Tim Kaine (D-Va.) and Todd C. Young (R-Ind.) would repeal the 2002 authorization and the still-lingering 1991 Gulf War AUMF.
Alex Wong
GETTY IMAGES
President George W. Bush addresses the nation in March 2003 to announce the U.S. military had struck at “targets of opportunity” in Iraq.
In the House and Senate, backers in both parties say there is little reason to wait for an additional green light from the Biden administration to move ahead. Senate Majority Leader Charles E. Schumer (D-N.Y.) said this week that he is “sympathetic” to calls for repealing the 1991 and 2002 authorizations, and Kaine said in an interview that he has “not heard any opposition from the White House” over doing so.
But not all war authorizations are created equal. Lawmakers are bracing for more complicated and potentially contentious negotiations to repeal and replace the 2001 AUMF that Congress passed after 9/11 to authorize operations against al-Qaeda and the Taliban in Afghanistan.
[The war in Afghanistan shattered Biden’s faith in American military power]
The Biden administration is approaching a May 1 deadline, set by Trump, to withdraw all troops from Afghanistan. Biden has already said it would be “tough” to execute that by the deadline, though he supports the goal, as do many Democrats.
Yet the 2001 authorization has morphed into a measure with implications stretching far beyond Afghanistan. Successive presidents have made it a key underpinning for operations against al-Qaeda spinoffs, the Islamic State, and other nonstate terrorist groups, on what lawmakers argue are shaky legal grounds.
“We are so far past the scope of what any member serving in ’01 or ’02 could have imagined,” said Sen. Christopher A. Coons (D-Del.), acknowledging the road ahead “will be difficult. But at the same time that we’re reviewing and considering our path forward in Afghanistan, that is an appropriate time for us to look at an AUMF.”
At a news conference Thursday, the president indicated it was likely a final withdrawal of U.S. forces would happen before next year.
Engineering a new authorization to address threats from nonstate terrorist actors is a complicated undertaking. Experts have advised lawmakers to make sure any new authorizations “sunset” every couple of years, to give them a built-in opportunity to review their effectiveness. They have also urged Congress to better define “hostilities” under the War Powers Act, to close loopholes through which presidents have tried to avoid involving Congress in decisions about shifting military operations.
Historically, presidents have balked at Congress’s attempts to limit or review their decisions as commander in chief. But this year will be the first time since Congress began tackling the 2001 and 2002 authorizations in earnest that Democrats are in charge of both congressional chambers as well as the White House — a change that brings new opportunities, and potential pitfalls.
Kirsty Wigglesworth
AP
A U.S. Predator drone flies over Kandahar Air Field in southern Afghanistan in 2010.
This week, liberal Democrats stressed that Congress must not defer to Biden to set the pace for AUMF and war powers debates.
“We’re the Article I branch,” Sen. Brian Schatz (D-Hawaii.) said. “This has been a bipartisan push and it should remain so, regardless of who occupies the White House.”
Article I of the Constitution specifically gives Congress the “power … to declare war.” Article II states that “the president shall be Commander in Chief of the Army and Navy of the United States.” Disputes between the legislative and executive branches of government have arisen when presidents argue — and Congress disagrees — that military operations fall short of “war” or are covered by a preexisting authorization.
The War Powers Resolution dates to 1973 when, over President Richard Nixon’s veto, Congress moved to limit the length of time a president can engage in “hostilities” without securing Congress’ support. But since then, presidents have argued it is unconstitutional, and even its proponents in Congress acknowledge it needs reworking.
For now, Congress is not in a position simply to initiate repeals and hope for the best. Even with bipartisan support, there are not enough votes in either the House or Senate to override a presidential veto. In several corners of the Republican Party, there continues to be opposition to tackling the matter in the first place.
“It’s a problem that doesn’t exist that they’re trying to fix that would create a worse problem. I think it would incentivize the rise of terrorism,” Sen. Lindsey O. Graham (R-S.C.) said in an interview, when asked about the use-of-force authorization debate getting underway again.
[Trump vetoes resolution to end U.S. participation in Yemen’s civil war]
“I’m not voting for something until I see what they’re talking about to get something in place,” said Sen. James E. Risch (R-Idaho), the top-ranking Republican on the Senate Foreign Relations Committee. “Whatever else you say, the president and the executive branch of government has to have something.”
Kaine, who has had preliminary talks with Biden’s national security adviser Jake Sullivan about strengthening Congress’s war powers, argued that it was important to engage in “civil dialogue” and resolve differences before any repeals came to the floor.
“We’re not playing ‘mother may I.’ We’re going to do what we think is right,” he said. “But we would rather do it knowing what [the White House thinks] about it.”
Democrats and Republicans are agreed that working in partnership with the Biden administration is the goal. The question is how long negotiations between the White House and Congress will take — and how long lawmakers are willing to wait.
“If we experience stasis and sort of redirection and foot-dragging as it pertains to this issue, yes, there does come a point at which we just decide to lead,” the GOP’s Young said. “But first we work with the administration because that’s really how we can make law. We’ll probably just be making a point, absent cooperation from the administration.”
