Below is my column in The Hill newspaper on the recent Senate hearing (in which I testified) on the proposed new AUMF legislation. In the last couple days, an open battle erupted between Sen. Lindsey Graham (R., South Carolina) and Sen. Rand Paul (R., Kentucky) after Graham called for the addition of North Korea among the ever changing list of countries. Paul called him “a danger to the country.”
Here is the column:
This country has been at war for 17 years. Most young people have never really known a nation at peace. If a bipartisan bill drafted by Sens. Bob Corker (R-Tenn.) and Tim Kaine (D-Va.) is successful, they will likely never know a true peacetime. Indeed, if the proposed authorization for use of military force (AUMF) is passed, our “endless war” will be put on autopilot, with no sunset date and little real congressional involvement. The past 17 years would be mere prologue to a war that could easily go 170 years longer, without a single vote of Congress.
Just this week, Sen. Lindsey Graham (R-S.C.) called for the possible addition of North Korea to the ever growing list of authorizations for war. All of this is in direct violation of express conditions set by the Framers in the Constitution, but that appears entirely irrelevant to Congress and the courts. If there is a sacred part of the Constitution, it is Article I, Section 8. The obligation of members of Congress to declare war is not merely a constitutional but a moral responsibility.
I recently testified on the Corker-Kaine proposal at a Senate hearing organized by Sen. Rand Paul (R-Ky.), who is one of the few members actively opposing the AUMF. The proposal would constitute the final abdication of the power to declare war by Congress, effectively removing a constitutional duty without a national amendment or even a debate. The new legislation would discard not just the obligation of Congress to declare wars but even the president’s obligation to secure prior authorization for specific wars.
It is precisely what the Framers thought they had prevented by refusing to give a president authority to go to war. Indeed, it was one of the most important, near-unanimous decisions made by the Framers. In the Constitutional Convention, delegate Pierce Butler proposed giving such power to the president with the expectation that he “will not make war but when the nation will support it.” He did not even receive a second to his motion. Not one Framer was willing to support such a system.
That deafening silence was one of the most defining moments in our history. It was undeniable proof that we were radically changing how wars are made. In 1793, George Washington celebrated the denial of this power to a president as a clear and binding promise that “no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure.”
The Corker-Kaine proposal would now bring about in a statute what Butler unsuccessfully sought in the Constitution. Members of Congress have long struggled to avoid responsibility for wars. They have used, generally, ambiguous resolutions to give them political cover if wars went badly. Thus, when the undeclared Iraq War went on for decades at the cost of trillions of dollars and thousands of casualties, politicians like Hillary Clinton simply said she had been misled in granting prior sweeping authorization. In our almost 250 years, we have had only five declared wars. The rest have been essentially “off the book” wars that give presidents unchecked authority, and Congress, plausible deniability.
Passed on Sept. 14, 2001, the AUMF was criticized by many of us as hopelessly open ended and another abdication by Congress. Rather than debate any specific country in a declaration, Congress handed over the authority for the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Not surprisingly, it was then used to launch extended military operations in Afghanistan, Pakistan, Yemen, Somalia, Syria, Iraq and Libya. It was used to attack groups that did not even exist back when 9/11 happened, as well as groups that were lethal enemies of al Qaeda. According to the Congressional Research Service, this broad authority has been used 37 times in 14 countries for acts of war.
The most disturbing element in the new AUMF is the authority of a president to add new targets or to expand the scope of the authorization at his sole discretion, requiring Congress to pass a bill later if it wants to preserve the original scope passed in the AUMF. It gets rid of the pretense of a connection to 9/11 by giving presidents practically unfettered authority to go to war anywhere and anytime.
Congress first abandoned the express requirement of a declaration of war. It then abandoned the need for specific authorizations of force in favor of broad categories of possible enemies. Now it is dispensing with the need for any prior authorizations to attack specific targets. The constitutional requirement for a declaration would be substituted with a requirement that a president inform Congress after the fact. Congress could then try to pass a bill that denied authority for a particular country or group. This would be a laughable notion given the history of Congress.
Members are fully aware that, even if a majority of members could be found to oppose a war in another country, it is highly unlikely that they could muster a veto-proof majority. The Corker-Kaine proposal achieves the goal of members to remove themselves from responsibility over war. The new AUMF would codify the desire of Congress to be a mere pedestrian to the prosecution of wars by the United States. It would combine this abdication of authority with a longstanding failure to limit the use of appropriated funds. Thus, this “blank check” will have not only an unstated purpose but an unstated amount.
In the recent Senate hearing, I did something that I have not done in dozens of prior such testimonies: I brought two of my sons. Jack and Aidan are now at or close to draft age, and I felt they should be present because they could well be asked to pay the ultimate price for wars started under this new law. If called, I know they would do their duty, as did their grandfather, great grandfather, and prior generations of our family in other wars. The question is whether members of Congress will do their duty as laid out in our Constitution and reject this new AUMF.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has testified before Congress on national security issues. You can follow him on Twitter @JonathanTurley.