Move to Authorize Force Against ISIS Unlikely in Lame Duck

Congress has been given its most explicit invitation yet from the White House to authorize the military strikes against Islamic State forces in Syria and Iraq, but whether lawmakers will seize the opportunity to reclaim their war-making power is another matter.

It seems almost certain that nothing will be done during the busy lame-duck session that began this week, according to multiple aides close to the issue, even though some argue the Obama administration has already exceeded its legal authority under the War Powers Act to conduct operations against the Sunni militants.

Waiting would kick the issue to the new Republican-controlled Congress next year, and while several GOP members have advocated for a vote, there appears to be a wait-and-see attitude on the part of leadership. Speaker John Boehner wants specific language from the administration before the House moves on the matter, noting that past authorizations, such as the one following the 9/11 attacks, originated with the administration. "The ball's in their court," a Boehner aide says.

The problem is, there's a tremendous incentive for the White House to do nothing. Since President Obama raised the matter of a new or updated Authorization for Military Force in a press conference last week, administration officials have repeatedly insisted that President Obama currently has the legal authority to prosecute the conflict against the Islamic State. "We have what we need," State Department spokeswoman Jen Psaki told reporters. "But that doesn't change the fact that we're strongest as a nation when the executive branch and Congress work together."

Indeed, the rationale for going to Congress for an AUMF has largely been expressed in political terms, not legal ones. White House spokesman Josh Earnest said last week that it would "send a very clear signal to our allies around the globe that Congress and the White House are united in this effort." Left unsaid is that it would also result in Republicans taking more ownership of the war.

That prospect left some Republicans and Democrats skittish in September when the House and Senate each bypassed a broader debate on the scope of the conflict in favor of a simpler vote on funding moderate Syrian rebels. Even that provision came with an expiration date and was tucked into a larger spending bill so as to lessen its potency as a political weapon down the line.

It might be harder to do that with an up-or-down vote on another extended war in Middle East, one that the Pentagon estimates could take years or even decades. Some congressional Republicans flush with midterm success can remember how their vote in 2002 to authorize the Iraq War was used against them four years later when the party lost both chambers. Add to the mix that several potential GOP presidential contenders are in the Senate, including Sens. Rand Paul of Kentucky, Ted Cruz of Texas, and Marco Rubio of Florida. Paul and Cruz voted against arming the rebels. Rubio voted in favor.

Paul has been openly critical of the White House's legal justification for the battle against the Islamic State, arguing that it can no longer rely on the AUMF passed in 2001 for the invasion of Afghanistan and one the following year on Iraq. Beyond those authorities, Paul, like many in Congress, believe the president is subject to the requirements of the War Powers Act, which calls for the end of military operations within 90 days if congressional approval hasn't been secured. That deadline recently passed for the conflict in Iraq and Syria, but Obama, as presidents have before him, rejects the act's limitations, arguing that the Constitution gives him broad powers to protect the nation. He angered many in Congress in 2011 when he seemed to pay little heed to the act as the U.S. helped bring down the Muammar al-Qaddafi regime in Libya.

Paul believes Congress can't wait for Obama to propose a new authorization. "It has to come from the Hill. I don't think the White House cares enough to push Congress into doing it," a Paul aide says. "Something like this is going to have to be put on the agenda by the leadership." Paul's concerns were echoed by a House Armed Services Committee Democratic aide, who fears that anything coming from the White House will categorically be rejected by the GOP.

But Tim Kaine, the Democratic senator from Virginia who also has been heavily critical of the White House's assertions of its legal authority, disagrees. In a speech Wednesday at the Wilson Center in Washington, Kaine said it's Obama's duty to take his case to the Hill. "If the president had really pushed Congress to have this debate and vote before we went into recess, he would have gotten authorization," Kaine said. "This works so much better when the president sends up the draft authorization. Because if he doesn't, then you have six authorizations."

Kaine argues that Congress needs to act now, during the lame duck, because the country, in his eyes, is currently fighting an illegal war. And there will be multiple opportunities for Congress to act. One could involve tacking a provision onto the annual defense authorization bill. Another could be packaging the AUMF with a vote to again authorize arming the moderate Syrian rebels.

But the more widespread view is that there are too many political and logistical hurdles for a vote to take place in the coming weeks. For one thing, there are widely differing views on what form the authorization would take. Would it be restricted to attacks against only the Islamic State or its affiliates? Would it confine the U.S. to operations only in Iraq and Syria? (What if the fight spreads to Lebanon?) Would it carry a time limit?

Perhaps the most divisive issue involves whether to place some sort of restriction on the use of American ground troops in the region—something that could be opposed by the White House on the principle of allowing the Pentagon as much discretion as possible to conduct the war. Hawkish members such as Sen. John McCain of Arizona, the new GOP chairman of the Armed Services Committee, would give the administration wide leeway in that regard, but proposals by Kaine and Rep. Adam Schiff of California would allow for ground troops only in narrow circumstances.

There's some precedent. Last year, after Obama went to Congress for approval to strike the Bashar al-Assad regime in Syria, the Senate Foreign Relations Committee crafted a bill (watering down the White House's initial proposal) that prohibited the use of ground troops, confined the conflict to Syria, and set a 60-day limit for action, with the possibility of a 30-day extension. Sen. Bob Corker of Tennessee, who helped draft the tightly tailored authorization, will chair the committee in the new Senate. But he—and others—will have to keep in mind that the White House will have little reason to sign anything it finds unduly restrictive.

There will also be pressure to use the occasion to revise—or as the president has said, "right-size"—the 2001 AUMF and repeal the Iraq War AUMF outright. Critics such as Kaine say the 2001 authorization has been stretched and distorted beyond its intended purpose—eliminating al-Qaida and the Taliban in Afghanistan and Pakistan—to give legal cover to just about any action the United States takes against a terrorist cell anywhere in the world. Without changes, they argue, it justifies open-ended military action in perpetuity and against threats that the Obama administration won't even publicly disclose. But to date, there's been little appetite in Congress for revisiting it.

Stephen Vladeck, a professor at American University, is one of a number of legal scholars who this week offered their own principles for a new AUMF. Vladeck says the 2001 AUMF should be amended with a "sunset" provision that would force a future Congress to debate its merits anew. Its time, he said, for lawmakers to assert their institutional check on the president's power or risk losing it altogether. "If Congress can reach consensus on anything, I hope it's this," he says. "At the end of the day, Congress fails to do so at its own peril."

This article appears in the November 13, 2014 edition of NJ Daily.

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