- The Washington Times - Sunday, December 25, 2016

President Obama took office criticizing the expansive wars fought under the 2001 and 2002 authorizations for the use of military force, but over the past eight years, he has become attached to the two documents and used them to justify expansion of U.S. military action around the globe.

His campaign to oust Libyan leader Moammar Gadhafi, his halting policy toward Syria and, just last month, his expansion of the U.S. commitment to fighting al-Shabab in Somalia have all been initiated under the legal cover of the 2001 AUMF aimed at punishing al Qaeda for the Sept. 11 attacks.

The issue flew under the radar in the presidential race this year, and President-elect Donald Trump has given no indication that he plans to change course after he takes the oath of office next month, leaving matters in a legal gray area.

A bipartisan group of lawmakers has long demanded that Congress reassert itself and claim a say in extended military actions, but divisions have prevented Capitol Hill from settling on a replacement — undercutting efforts to rewrite the earlier AUMFs.

Some opponents have begged the courts to step in, saying Mr. Obama’s fight against the Islamic State stretches his war powers too far.

But a federal district court ruled last month that Army Capt. Nathan Michael Smith lacked standing to sue over the issue, saying it is a political matter for the president and Congress to decide free of court scrutiny.

David Remes, Capt. Smith’s attorney, said the ruling is misguided. He argued that the lawsuit aims to bring the president in line with the law and warned that the decision “effectively blocks off all challenges to violations of the War Powers Resolution.”

“The War Powers Resolution put the burden on the president to get approval from Congress to wage war,” Mr. Remes told The Washington Times. “If no one can challenge a presidential war — undertaken without the approval of Congress — then we have unlimited war-making power.”

Mr. Remes is preparing an appeal, but Jennifer Daskal, an associate professor of law at American University, told The Times that the president’s authority to wage war could be challenged even if Capt. Smith’s appeal fails.

She noted that Capt. Smith said he supports the goals to fight the Islamic State, but if opponents could recruit troops who had moral objections, they might be able to force the issue before a judge.

“A future plaintiff could allege a more concrete injury, in the form of physical or emotional harm or a firmly held conscientious objection to joining the military action, and still have standing to challenge the scope of the AUMF,” Ms. Daskal said. “The Smith case specifically leaves open that possibility.”

The courts have become the center of the debate thanks to inaction on Capitol Hill, where a limited number of lawmakers are pushing for change and are arguing that Mr. Obama’s action has set a dangerous precedent.

Sen. Tim Kaine, Virginia Democrat, has circulated a petition urging voters to “demand Congress exercise its constitutional duty to put a check on the president.”

Mr. Kaine, the Democratic vice presidential nominee this year, also dedicated his first postelection speech to the issue. He argued that the 2001 authorization that allowed action against the perpetrators of the Sept. 11 terrorist attacks has “stretched way beyond” its intended purpose and “is now being used all over the globe against organizations that didn’t even exist when the 9/11 attacks occurred.”

“As this war has expanded into two-plus years — I don’t know whether that would have been the original expectation — with more and more of our troops risking and losing their lives far from home, I am concerned and again raise something I have raised often on this floor: that there is a tacit agreement to avoid debating this war in the one place where it ought to be debated, in the halls of Congress,” Mr. Kaine recently said on the floor of the Senate.

Sen. Ben Sasse, Nebraska Republican, applauded Mr. Kaine’s remarks. Others, including Sen. Rand Paul, Kentucky Republican, and Sen. Christopher Murphy, Connecticut Democrat, have vowed to push Congress to revisit the issue.

Mr. Paul, though, said the number of lawmakers who believe in the provision of the Constitution is limited.

“There are a few of us that believe we should authorize war, and the vast majority either don’t care or simply think it is messy so they don’t want to get involved,” he said, adding that lawmakers cannot agree on what a reworked AUMF would look like.

Mr. Obama offered a plan for military action against the Islamic State in 2015 that would have scrapped the 2001 and 2001 authorizations and sunset after three years.

But Republicans felt the plan was too restrictive, while Democrats worried it was too broad and would lead to another war in the Middle East.

Mr. Murphy said it is hard to imagine the next Congress having more interest in the debate.

“That is a needle that we should thread, but it is very difficult to thread, and it is hard to figure out how this new administration is going to be able to do something that the Obama administration couldn’t,” Mr. Murphy said. “I am going to argue loudly for an AUMF, but I am also sober about the prospects given Trump’s lack of interest in this subject.”

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