Senators Murphy, Lee, and Sanders have introduced legislation to address Congressional and Presidential war powers. (See bill text, press release, one pager, video of press conference, op-ed, and Politico article).
In recent months, we’ve seen efforts to repeal some but not other AUMFs (Authorizations for the Use of Military Force), plus talk of creating a new AUMF (why?!). And for years we’ve watched people like Senator Kaine talk about reclaiming Congressional war powers while pushing legislation to eviscerate them. So, I thought I had reason to worry.
I heard about this new legislation before it appeared from people concerned that it was not going to address the power to impose illegal and deadly sanctions on nations around the world. I thought that was a serious concern. And it turns out to have been well justified, as the bill does not say one word about sanctions. But I was wary of focusing on promoting that improvement to a bill that nobody would show me or tell me what else was in it. Not much point in perfecting a catastrophically bad bill, you know?
Now, to be clear, this bill is not the arrival of peace, sanity, and disarmament. It does not recognize that wars are illegal under the UN Charter, the Kellogg-Briand Pact, and various other treaties, and prosecutable by the International Criminal Court. It treats perfectly seriously the question of which branch of government should authorize the worst crime there is, in a manner that would never be applied to, say, Congressional Rape Powers or Congressional Child Abuse Powers.
Nor, of course, does new legislation deal with the failure to use existing legislation. The War Powers Resolution of 1973 was simply not used to end any wars until Trump was in the White House, at which point both houses of Congress used it to end U.S. participation in the war on Yemen, knowing that they could rely on a Trump veto. As soon as Trump was gone, Congress — down to every last man and woman — pretended it had never done anything and declined to inconvenience Biden by making him end the slaughter or veto the bill. Laws are only as useful as the people using them.
That being said, this bill looks to me to have much more good than bad in it. While it repeals the War Powers Resolution of 1973, it replaces it with a tweaked (not a decimated) version that is in some ways better than the original. It also repeals the AUMFs, including the 2001 AUMF that the busy AUMF repealers of recent months have avoided mentioning. It also strengthens the means by which Congress could, if it chose, not just end a war, but block a weapons sale or put an end to a declared state of emergency.
The new legislation is longer, more detailed, and with clearer definitions than the existing War Powers Resolution. This may make the biggest difference when it comes to the definition of “hostilities.” I recalled Obama lawyer Harold Koh informing Congress than bombing Libya would not count as hostilities. What are non-hostile bombs? Well, the War Powers Resolution (and this carries over to numerous sections of the new bill) is phrased in terms of the placement of troops. The general understanding of the U.S. government and U.S. corporate media for many years has, in fact, been that you could bomb every inch of a country hourly without it being a war, but as soon as a U.S. troop was placed in danger (of something other than suicide or command rape) it would be a war. Thus you can “end” the war on Afghanistan while including plans to target it with missiles in the same paragraph. But the new bill, while it might not receive awards for good grammar, pretty clearly defines “hostilities” to include distant war by missiles and drones [bolding added]:
“The term ‘hostilities’means any situation involving any use of lethal or potentially lethal force by or against United States (or, for purposes of paragraph 4(B), by or against foreign regular or irregular forces), irrespective of the domain, whether such force is deployed remotely, or the intermittency thereof.”
On the other hand, I notice that the new bill introduces the need for a president to request an authorization from Congress when he or she has launched a war, but makes no mention of what happens if said president does not make that request. The legislation introduced in the past by Congresswoman Gabbard to make presidential wars automatic impeachable offenses might have made a good amendment here.
I also notice that the new bill requires a joint resolution in both houses, without making crystal clear to my amateur eye that a single member of a single house can still initiate the process of ending a war without having a colleague in the other house yet doing the same. If a member of the House of Representatives were forced to wait for a Senator before acting, most of the votes in the House over the years that have made use of the War Powers Resolution would never have happened.
That being said, these high points enumerated by the bill’s sponsors are all very much to the good:
The bill shortens the time period for ending an unauthorized war from 60 to 20 days. [But what about one-off drone murders that don’t take 20 days?]
It automatically cuts off funding of unauthorized wars.
It outlines requirements for future AUMFs, including a clearly defined
mission and operational objectives, the identities of groups or countries targeted, and a two–year sunset. A subsequent authorization is required to expand the list of objectives, countries, or targeted groups. As most U.S. wars have never had a clearly defined mission, this bit could turn out to be stronger than its authors even think.
But of course all would depend on how Congress chose to use this new law, if were ever made into law — a big if.
UPDATE:
A smart colleague points out a new weakness. The new bill defines the word “introduce” to exclude various wars instead of relying on the word “hostilities” to do so. It does this by defining “introduce” to exclude “the assigning or detailing of members of United States forces to command, advise, assist, accompany, coordinate, or provide logistical or material support or training for any foreign regular or irregular military forces” unless “such activities by United States forces make the United States a party to a conflict or are more likely than not to do so.” It never defines “party.”
UPDATE 2:
The section of the bill re declarations of emergencies includes power over sanctions. An earlier draft of the bill included an explicit exception for sanctions, leaving power over sanctions to presidents. That exception was taken out of the bill, following pressure from advocates. So, this bill as now written would in fact give Congress more control over sanctions should it choose to use it — at least as related to national “emergencies” of which there are now 39 ongoing.