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Analysis

A Bipartisan Bill to Rein in Presidential War-Making

New legislation would reinvigorate the War Powers Resolution.

September 30, 2021
Man stands next to drone
U.S. Air Force/Getty

“I stand here today, for the first time in 20 years, with the United States not at war,” Pres­id­ent Biden declared last week in a speech before world lead­ers at the United Nations.

The with­drawal of U.S. ground forces from Afgh­anistan was indeed moment­ous. But war takes many forms. As U.S. troops boarded flights in Kabul, Biden refer­enced Amer­ica’s persist­ing “over-the-hori­zon capab­il­it­ies” in the coun­try — a euphem­ism for continu­ing airstrikes.

Since assum­ing office, Biden has also launched airstrikes in IraqSyria, and Somalia. In Septem­ber, he form­ally exten­ded the 9/11 state of emer­gency, ensur­ing that a broad array of milit­ary author­it­ies will be at his finger­tips until late 2022. And even if Biden made good on his prom­ise end to Amer­ica’s wars, none of his policies would bind a future pres­id­ent.

Congress alone has the power to end our nation’s pattern of milit­ary inter­ven­tion­ism. To that end, a bipar­tisan group of lawmakers led by Reps. Jim McGov­ern (D-MA) and Peter Meijer (R-MI) on Thursday intro­duced the National Secur­ity Reforms and Account­ab­il­ity Act. (A compan­ion bill, the National Secur­ity Powers Act, was intro­duced in the Senate in July.) This crit­ical legis­la­tion would keep Biden and future pres­id­ents in check by rein­vig­or­at­ing the War Powers Resol­u­tion of 1973.

The War Powers Resol­u­tion, enacted over the veto of Pres­id­ent Richard Nixon after the with­drawal of U.S. forces from Viet­nam, had the lofty ambi­tion of rein­ing in pres­id­en­tial war-making and restor­ing Congress’s consti­tu­tional prerog­at­ive to declare war. It provides that the pres­id­ent must consult with Congress when intro­du­cing U.S. forces into “hostil­it­ies.” If Congress does not within 90 days declare war or enact a “specific stat­utory author­iz­a­tion” to use force, any inter­ven­tion abroad must cease.

Unfor­tu­nately, the War Powers Resol­u­tion neglected to define the scope of the “hostil­it­ies” that would trig­ger Congress’s involve­ment. It also failed to define the para­met­ers of a “specific stat­utory author­iz­a­tion” to use force. These have proven to be crucial defects.

Since the law was passed, pres­id­ents have played fast and loose with the mean­ing of “hostil­it­ies.” Inter­pret­ing the term to exclude anything short of all-out ground combat, pres­id­ents have engaged in milit­ary oper­a­tions around the world without proper congres­sional over­sight or approval.

In 1983, Pres­id­ent Ronald Reagan declined to acknow­ledge the exist­ence of “hostil­it­ies” when 1,400 U.S. marines stationed as peace­keep­ers in Lebanon exchanged fire with oppos­ing forces and took casu­al­ties. Simil­arly, in 1984, the Reagan admin­is­tra­tion felt no need to consult with Congress about its deploy­ment of U.S. forces to provide assist­ance in El Salvador’s civil war, even though they repeatedly came under enemy fire in the coun­try. Fast-forward­ing to 1999, Pres­id­ent Bill Clin­ton actively avoided refer­ring to U.S. airstrikes in Kosovo as “hostil­it­ies,” indic­at­ing that he would consult with Congress only “with regard to the intro­duc­tion of ground forces.” In the same vein, the Obama admin­is­tra­tion argued that its 2011 airstrikes in Libya did not require congres­sional approval because they were “limited in nature, scope, and dura­tion.” Thus, success­ive pres­id­ents have inter­vened in Africa, Asia, Europe, and Latin Amer­ica, all while evad­ing the dictates of the War Powers Resol­u­tion.

In addi­tion, the War Powers Resol­u­tion’s lack of clar­ity on what consti­tutes a “specific stat­utory author­iz­a­tion” to use force allowed the scope and purpose of conflicts to meta­stas­ize. Pres­id­ents Bush, Obama, Trump, and Biden have stretched exist­ing stat­utory author­iz­a­tions — the 2001 and 2002 Author­iz­a­tions for Use of Milit­ary Force (AUMFs) — far beyond their text.

The 2001 AUMF, which author­ized force against “persons [who] planned, author­ized, commit­ted, or aided the terror­ist attacks that occurred on Septem­ber 11,” was used as a mandate to engage in a protrac­ted, misguided, and extremely costly state-build­ing effort in Afgh­anistan.  Further­more, the 2001 AUMF was and contin­ues to be used to justify milit­ary oper­a­tions against terror­ist groups that did not even exist on 9/11. Like­wise, the 2002 AUMF, which addressed the purpor­ted threat posed by Iraq under Saddam Hussein, has been wiel­ded against groups and people who have little or no connec­tion to Iraq.

By inter­pret­ing “hostil­it­ies” narrowly and over­read­ing the 2001 and 2002 AUMFs, pres­id­ents have avoided consult­ing with Congress on direct milit­ary engage­ment in at least 12 coun­tries other than Iraq and Afgh­anistan, ranging from Mali to the Phil­ip­pines. For a decade, even Congress was in the dark about where and against which groups Amer­ica was using force.

The National Secur­ity Reforms and Account­ab­il­ity Act would end such abuses. The legis­la­tion defines “hostil­it­ies” to clarify that any use of milit­ary force abroad trig­gers the pres­id­ent’s oblig­a­tion to consult with Congress. It specifies that “hostil­it­ies” include force that is “inter­mit­tent,” such as airstrikes, as well as force that is used to assist foreign coun­tries fight­ing their own domestic conflicts, as in Somalia, Mali, and the Phil­ip­pines. It expli­citly prohib­its the use of force without prior congres­sional author­iz­a­tion unless such force is “neces­sary” to repel an immin­ent attack or respond to a concrete and imme­di­ate threat against the United States.

Just as import­ant, the legis­la­tion defines “specific stat­utory author­iz­a­tion.” In order to qual­ify as congres­sional approval to use force under the War Powers Resol­u­tion, an AUMF must artic­u­late oper­a­tional object­ives; identify the groups against which the pres­id­ent may use force; and identify the coun­tries where the pres­id­ent may use force. AUMFs must also expire within two years of enact­ment, with the option of congres­sional renewal.

Had these criteria been in place, it is far less likely that our engage­ments in Afgh­anistan and Iraq would have dragged on as long as they did, and our many milit­ary adven­tures outside those coun­tries would have been limited to those Congress was will­ing to author­ize.

Although the defin­i­tions of “hostil­it­ies” and “specific stat­utory author­iz­a­tion” are the key provi­sions of the National Secur­ity Reforms and Account­ab­il­ity Act, the legis­la­tion has more to offer. It brings the War Powers Resol­u­tion into the modern age by recog­niz­ing that cyber­at­tacks can rise to the level of a use of force and warrant congres­sional over­sight. It closes a loop­hole in the War Powers Resol­u­tion that permits the pres­id­ent to wage three months of unfettered war by simply attest­ing that contin­ued uses of force are an “unavoid­able milit­ary neces­sity.” And it permits Congress to seek judi­cial review of War Powers Resol­u­tion viol­a­tions. Finally, the bill requires the pres­id­ent to publicly describe and justify any author­ized uses of force on a monthly basis.

The National Secur­ity Reforms and Account­ab­il­ity Act and its Senate coun­ter­part demand a level of pres­id­en­tial trans­par­ency and account­ab­il­ity, as well as congres­sional respons­ib­il­ity, that the War Powers Resol­u­tion aspired to but failed to achieve. To prevent future pres­id­en­tial war-making — whether in the form of ground combat or lethal drone strikes — Congress should pass this legis­la­tion.