Tuesday, June 19, 2018 | 2 a.m.
Right idea, terrifyingly wrong approach.
In creating congressional legislation aimed at defining the president’s power to wage war, Sens. Bob Corker of Tennessee and Tim Kaine of Virginia deserve some credit for trying to address a longstanding concern and force Congress to accept its responsibility to provide a check on the executive branch’s control of the military.
But the senators’ proposal actually threatens to give presidents more latitude in deciding when to attack foreign nations in the name of defeating terrorism, while weakening Congress’ leverage.
The Corker-Kaine act would authorize the president to wage war against a number of specific groups and nations — ISIS, al-Qaida, the Taliban and other forces operating in Iraq, Syria, Afghanistan, Somalia, Yemen and Libya.
So far so good, but the bill also would give the president the authority to use force against those groups operating in other areas, as well as groups or individuals falling under the hazy category of “associated forces.” The potential outcomes include the president attacking “associated forces” operating on U.S. soil, possibly even Americans.
And while the act would require the president to give Congress 48 hours notice to broaden the war on terror, a vote by Congress would be subject to veto. That’s a huge change.
Currently, war authorization requires an affirmative vote by a simple majority of Congress, meaning conversely that the House and Senate could reject authorization by a simple majority in the negative.
Now, it would require a no vote by a two-thirds majority to keep the president from expanding the conflict.
That’s a high bar, especially at a time of extreme partisan politics. The American Civil Liberties Union raised an alarm about the bill, saying its damage would be “colossal.”
“The Corker-Kaine AUMF would give the current president and all future presidents authority from Congress to engage in worldwide war, sending American troops to countries where we are not now at war and against groups that the president alone decides are enemies,” ACLU administrator Christopher Anders said told Congress during a committee hearing this month. “To be clear, the president would have unilateral authority to add additional countries — including the United States itself — to the list of countries where Congress is authorizing war. And the president would have unilateral authority to add additional enemies, including groups in the United States itself and even individual Americans, under its new authority for the president to designate ‘persons’ as enemies.”
The bill would help solve part of the problem by forcing the president to identify areas where military operations are being carried out. But that benefit comes at too high of a price in terms of Congress giving up its ability to override the president.
Congressional lawmakers have already given up too much ground.
The War Powers Act, passed during the Vietnam era, gave Congress control it should still have. That measure stated that if a president exercised military force, Congress would either need to approve the deployment or extend it after 60 or 90 days.
But that measure has been violated numerous times in the decades since it was approved, and especially since 9/11. The Authorization for the Use of Military Force measures that Congress approved in 2001 and 2002 apply only to al-Qaida and the Taliban in Afghanistan and Iraq, for example, but Presidents Barack Obama and Donald Trump have extended actions to at least 14 countries.
Their justification? Lawyers for both presidents said the commander in chief can act unilaterally in ordering attacks if those actions don’t involve putting boots on the ground and are in the national interest.
Those arguments were dubious from a constitutional standpoint, but Congress has done little except wring its hands publicly while quietly letting someone else shoulder the huge weight of putting U.S. troops in harm’s way.
This is not what the Founding Fathers had in mind. They deliberately gave war authorization to Congress, so as to give the representatives of the people a check on the president’s control over the military.
In an analysis of the Corker-Kaine measure by The Atlantic, legal scholar Jonathan Turley underscored that point emphatically.
“This is one of the few points on which there was almost unanimity (at the Constitutional Convention),” he said. “I say almost because Pierce Butler actually proposed to give this entire power to the president of the United States. He didn’t receive a single second. He spoke to a room of Framers and made that proposal, and not a single one seconded that motion. That was one of the most important moments of our republic. That silence, that absence of a sound, shows where we began.”
It also shows where we should still be standing today. There’s no way Nevada’s congressional delegates should approve this measure in its current form.
Here is how to make your voice heard to Sens. Dean Heller and Catherine Cortez Masto, and Reps. Dina Titus, Jacky Rosen and Ruben Kihuen.
• Phone: 702-388-6605 (Las Vegas) and 202-224-6244 (Washington)
• Online: Email: heller.senate.gov/public/index.cfm/contact-form
• Phone: 702-388-5020 (Las Vegas) and 202-224-3542 (Washington)
• Online: cortezmasto.senate.gov/content/contact-senator
• Phone: 702-220-9823 (Las Vegas) and 202-225-5965 (Washington)
• Online: titus.house.gov/contact/email-me
• Phone: 702-963-9500 (Las Vegas) or 202-225-3252 (Washington)
• Online: rosen.house.gov/contact/email
• Phone: 702-963-9360 (Las Vegas) and 202-225-9894 (Washington)
• Online: kihuen.house.gov/contact