- The Washington Times - Sunday, March 7, 2021

President Biden and a bipartisan caucus on Capitol Hill may have just taken the first step toward a deal that has eluded Washington for more than a decade: the establishment of clear, narrow limits on a commander in chief’s authority to take the country into war.

Mr. Biden on Friday committed to working with Congress to replace war-making authorities that have underpinned U.S. military action in the Middle East and beyond for the nearly two decades since the shock of the Sept. 11 attacks in 2001.

Despite the readiness for change, laying down new rules will likely prove a tough task on both ends of Pennsylvania Avenue.

The White House comments were the first clear signal from the Biden administration that it is on board with a bipartisan push to craft new versions of Authorization for Use of Military Force (AUMF) laws. Critics say the authorizations have been stretched past the breaking point and abused by presidents of both parties at the expense of congressional oversight.

The White House announced its intentions a week after Mr. Biden authorized, without congressional approval or notification, U.S. airstrikes in Syria against the Iran-backed militia Kataib Hezbollah, which the Pentagon said had been targeting American forces in neighboring Iraq.

The president did not cite any AUMF in his legal rationale. Lawmakers and analysts said the strikes, along with President Trump’s decision to target and kill Iranian Maj. Gen. Qassem Soleimani last year, offered more proof that the executive branch had amassed near-limitless power to conduct military operations whenever and wherever they please.

The key debate centers on the AUMF enacted in 2001 in the days after the 9/11 attacks, giving President Bush the legal grounds for the U.S. to invade Afghanistan and topple the Taliban. It also authorized the president to take military action to defeat al Qaeda and others who plausibly contributed to or supported the devastating attacks.

In the years since, Presidents Bush, Obama and Trump used the force authorization measure to justify years of military campaigns against the Islamic State in Iraq and Syria, hundreds of airstrikes on the al-Shabab terrorist network in Somalia, and a host of other actions in the Middle East and Africa. Presidents in both parties have argued that the AUMF gives them broad discretion to target terrorist groups around the globe.

Analysts say it’s long past time to rewrite the rules.

”At some point, a country has to be precise about how it thinks about its military footprint. The idea that we’ve allowed the original AUMF to expand exponentially since the fall of 2001 is really unconscionable,” said Karen J. Greenberg, director of the Center on National Security at Fordham University School of Law. “What we’ve learned is we actually need laws with some barriers and with limits. The reason we need to reconsider the AUMF comes down to lessons learned.”

The White House seems to agree, at least rhetorically, with the need to establish new guidelines. White House press secretary Jen Psaki said Friday that Mr. Biden is committed to working with the House and Senate to “ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the ‘forever wars.’”

How far and how fast?

It’s not entirely clear, however, exactly how far the partnership will go. Although the White House said it is open to reviewing all AUMFs on the books, current legislation on Capitol Hill does not address the 2001 law that Ms. Greenberg and other specialists say is the most problematic.

A bipartisan bill rolled out last week by Sen. Tim Kaine, Virginia Democrat, and Sen. Todd Young, Indiana Republican, would repeal the 1991 and 2002 AUMFs on the books. The 2002 AUMF authorized the U.S. military campaign against Iraqi dictator Saddam Hussein, and the 1991 law paved the way for the Persian Gulf War and technically remains in place 30 years later.

“Last week’s airstrikes in Syria show that the executive branch, regardless of party, will continue to stretch its war powers,” Mr. Kaine said in a statement. “Congress has a responsibility to not only vote to authorize new military action, but to repeal old authorizations that are no longer necessary.”

The 1991 and 2002 authorizations, Mr. Kaine said, “need to be taken off the books to prevent their future misuse. They serve no operational purpose, keep us on permanent war footing and undermine the sovereignty of Iraq, a close partner.”

The legislation has support across the ideological spectrum, including from liberal Sen. Richard J. Durbin, Illinois Democrat, and libertarian-leaning Sen. Rand Paul, Kentucky Republican.

Ms. Greenberg said the broader and ill-defined 2001 AUMF also must be a part of the discussion. “I think the 2001 AUMF has to be addressed, and the sooner the better,” she said.

Lawmakers and administration officials alike say the politics of the move can be tricky. Rescinding the force authorization measures is easy enough. Saying specifically, on the record, what should replace them is difficult for both the executive and legislative branches.

“We did try to do this a few years ago, and it’s not easy to get to yes,” Secretary of State Antony Blinken said during his Senate confirmation hearing in January, when he recalled his own experiences as a top foreign policy aide in the Obama administration.

“For some the porridge is too hot, for others the porridge is too cold,” he said. “And can we get a consensus around what’s just right? But I would be determined and committed to working on that.”

Lawmakers say the recent airstrikes on Iran-backed militias should spur action, but Mr. Biden did not cite any AUMF in his legal justification for the order. Instead, he cited the right to self-defense after a missile attack on a base housing U.S. and allied troops and the belief in national security circles that the Iraqi militias would soon launch fresh attacks against U.S. interests.

“The United States took this action pursuant to the United States’ inherent right of self-defense as reflected in Article 51 of the United Nations Charter,” the president said in a letter to congressional leaders.

Some legal experts say that explanation is important and suggests that the limits of the 2001 and 2002 AUMFs may have been reached.

”Given that the Feb. 25 airstrikes targeted groups that were Iranian backed, rather than remnants or offshoots of the Islamic State, it would have been a legal stretch, and politically impossible, for Biden to rely on either the 2001 or 2002 AUMF,” John B. Bellinger III, a partner at the Arnold & Porter law firm and former legal adviser to the State Department, wrote in a recent post for the website Lawfare.

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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