- The Washington Times - Thursday, May 22, 2014

Republicans and Democrats alike were exasperated this week by the Obama administration’s befuddled effort to address the lingering war resolutions in Iraq and Afghanistan, which remain in effect more than a year after President Obama called for them to be rewritten.

Top Defense and State Department attorneys told Congress that while the 2002 authorization for the Iraq War should be repealed, the 2001 declaration that granted the president powers to go after terrorists worldwide should remain — even though they also said the president could continue fighting terrorism even without it.

“Basically, the administration today said they had the ability without any authorization for the use of force to do anything they wish militarily. I think there are a lot of members, especially on the other side of the aisle, who found that different than they thought,” Sen. Bob Corker of Tennessee, the ranking Republican on the Foreign Relations Committee, told The Washington Times after a contentious hearing Wednesday in which members of both parties expressed frustration with the president’s position.

Lawmakers walked out of the hearing questioning what role the president sees for Congress, and wondering why — a year after he called for a rethink — Mr. Obama has not made any overtures or even laid out details about how the 2001 use of force authorization should change.

“I think we’re all scratching our heads at this point,” said Sen. Marco Rubio, Florida Republican.

The war authorizations are increasingly nettling members of Congress, who argue that the war on terrorism bears little resemblance to the war they authorized in 2001. They question whether the 2001 declaration even envisions going after al Qaeda offshoots that didn’t exist at the time the resolution passed.

Stephen Preston, general counsel for the Defense Department, and Mary McLeod, principal deputy legal adviser at the State Department, said they thought the president could continue to strike overseas even without the authorization for use of force, based on existing constitutional powers and international standards of self-defense.

“I’m not aware of any foreign terrorist group that presents a threat of violent attack on this country that the president lacks authority to use military force to defend against as necessary simply because they have not been determined to be an associated force within the AUMF,” Mr. Preston said.

“In other words, if a group that is not or may not be covered by the AUMF presents the threat of violent attack to this country, the president does have authority to take action, including military action, to protect the country from that threat,” he said.

Ms. McLeod said they could continue to hold terrorism suspects in detention “pursuant to the law of war,” so the AUMF isn’t necessary for that.

One key question is whether the Authorization of Use of Military Force applies to splinter terrorist groups in Syria — including one, the Islamic State of Iraq and al-Sham, that started out as an al Qaeda affiliate but has now split.

Mr. Corker demanded to know whether the administration believed it was authorized to go after ISIS or al Qaeda in the Islamic Maghreb. Mr. Preston said he couldn’t answer those publicly, only in a classified setting.

“I don’t know how we can debate these issues when you cannot even tell us whether we can or cannot go after groups based on authorizations that Congress itself passed,” Mr. Corker retorted.

He said his office has written a replacement authorization, but hasn’t revealed it. Mr. Corker said his goal isn’t a “gotcha,” but rather to put the war on terrorism on firmer footing.

“It’s not in any way to try to pin the administration down or something like that. It’s just more the fact that the 60-word AUMF has morphed into something that was never its original intent,” he said.

The night before the hearing, senators met with top White House officials. Mr. Corker called the meeting “bizarre” in the lack of detail for what the Obama administration wants to do.

Foreign Relations Committee Chairman Robert Menendez, New Jersey Democrat, said he didn’t find the Tuesday meeting bizarre and said some of the anger at the two lawyers was misplaced because they weren’t prepared to discuss policy.

Still, he said he was surprised the administration hasn’t made any outreach to talk about what kinds of changes are needed to the 2001 authorization.

Mr. Menendez said the next step for his committee will be to hold a hearing with officials who are able to discuss policy. He said he hasn’t put a timeline on making changes.

“I think this is too important to put a ‘got to happen by this date,’ but obviously we have a short window legislatively,” he said.

The 2001 resolution granted the president the power “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.”

In the more than 12 years since the Sept. 11 attacks, presidents have used that declaration to conduct attacks in countries such as Yemen and Pakistan; to detain suspected terrorists at Guantanamo Bay, Cuba; to justify enhanced interrogation techniques; and to back up the use of drones to target Americans overseas.

The debate spilled onto the House floor this week, when Rep. Adam B. Schiff, California Democrat, offered an amendment to the defense policy bill that would have sunset the 2001 war declaration after one more year.

His proposal failed, but the 233-191 vote showed fascinating divisions: 27 Republicans joined 164 Democrats in voting for the sunset, while 30 Democrats joined the rest of the GOP in opposition.

“Without a sunset, I am convinced that, a year from now, we will be exactly where we are today, continuing to rely on an increasingly legally unreliable AUMF,” Mr. Schiff said.

Rep. Mac Thornberry, Texas Republican, said it was worth having a debate over whether the current war resolution is sufficient for the battles the U.S. is fighting — but he said that debate should happen before cutting off the existing authority.

“The world is still dangerous,” he said. “The terrorists are still coming for us. We need to keep this in place unless and until there is a more updated AUMF to replace it.”