- - Monday, January 20, 2020

Over time, Congress has ceded its war power to the commander-in-chief. As a result, modern presidents now assert broad unilateral authority in this area.

There are many reasons for this shift in power, not the least of which is Congress’s inconsistent use of its oversight powers or, more broadly, lawmakers’ lack of political will.

The strike against Iranian Gen. Qassem Soleimani has spurred Congress to launch at least a half-hearted effort to reclaim its war powers. The House has passed a resolution that would require the president to get congressional approval before greenlighting another military strike against Iran, and a similar resolution is pending in the Senate.

Both measures, however, are hollow. If lawmakers are serious about reclaiming their constitutional authority, they should debate and repeal the 1991 and 2002 Authorizations for Use of Military Force in Iraq. The purposes of both authorizations were accomplished years ago.

Rest easy: Repealing those two statutes would have no effect on the Sept. 11, 2001, war authorization and thus would not affect our ongoing efforts against al Qaeda, the Taliban, ISIS and associated forces.

After Iraq invaded Kuwait in 1991, Congress passed the 1991 Authorization for Use of Military Force (AUMF) Against Iraq Resolution. It’s still law, despite the fact that the primary purpose of that war authorization was accomplished decades ago. It was passed to enforce several United Nations Security Council Resolutions (UNSCRs), which are specifically referenced in the statute. It authorizes the President “to use United States Armed Forces pursuant to United Nations Security Council Resolution 678 in order to achieve implementation” of 11 other UNSCRs. After Iraq was defeated, UNSCR 687 established a formal cease-fire suspending hostilities. When Iraq, under the leadership of Saddam Hussein, violated the terms of the cease-fire, the United States, over the course of years, took limited military actions to punish Iraq.

Then 9/11 happened, and the Congress passed the 2001 AUMF, authorizing the use of military force against al Qaeda and the Taliban. That statute remains on the books, and now includes ISIS and associated forces.

A year later, Congress passed the 2002 Iraq AUMF. It authorized the president to: “(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.” The relevant UNSCR’s included those in the 1991 Iraq AUMF, each of which has been accomplished. U.S. troops remain in Iraq at the invitation of the Iraqi government.

The Trump administration acknowledges that the “primary focus of the 2002 AUMF” was “the threat posed by Saddam Hussein’s regime in Iraq.” However, they also say that the “express goals” have always been understood to authorize the use of force for the related dual purposes of helping to “establish a stable, democratic Iraq” and address terrorist threats emanating from Iraq.

That is, at best, debatable. More likely, that comes from the Iraq Liberation Act of 1998, which expressed the sense of Congress that it “should be the policy” of the United States to remove from power the “current Iraqi regime” and, according to the 2002 Iraq AUMF, “promote the emergence of a democratic government to replace the regime.” A sense of Congress, however, has no legal effect.

The second part of the 2002 Iraq AUMF’s dual purpose cited by the administration is to address terrorist threats emanating from Iraq. Fortunately, Iraq is no longer a threat to the United States, as it was under the Saddam Hussein regime or when ISIS controlled large areas of Iraq.

Congressional acquiescence toward these two unnecessary war authorizations relieves the legislative branch of its responsibility to speak on the issue of war and peace. Debating and then repealing these vestigial war authorizations is more than a matter of congressional hygiene. It would get Congress back in the business of properly exercising its Article I, Section 8 muscles.

A senior legal fellow at The Heritage Foundation, Charles D. Stimson manages its National Security Law Program.

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