Why is Congress AWOL?

Aug 26, 2014

Since June, President Obama has sent five notices to Congress on Iraq, in compliance with the terms of the War Powers Resolution. Each details a U.S. military action: the several hundred advisers deployed, the humanitarian airdrops for stranded Yazidis, the 500-pound bombs dropped on the fighters of the Islamic State of Iraq and the Levant (ISIL).

Each letter states, "I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."

Each ends, "I appreciate the support of Congress in this action."

Let's be clear: President Obama has all the legal authority he needs, under Article II of the Constitution, to take the limited action he has rightly taken so far. As Commander-in-Chief, he has an obligation to protect U.S. personnel in Erbil and Baghdad. And after the craven murder of James Foley--which was, as former Acting CIA Director Mike Morell recently pointed out, ISIL's first terrorist attack against the United States--ISIL has become a direct threat to American citizens.

That said, Senator Bob Corker, Ranking Member on the Senate Foreign Relations Committee, told the Wilson Center last June that, looking back on more than a decade of armed conflict with al-Qaeda, Congress finds itself left with "no ownership whatsoever" of U.S. counterterrorism (CT) policy. Some may prefer it that way, but Corker was less sanguine. He called the hands-off Congressional approach "totally feckless" - and he's right.

Given the experience of the last decade, it's understandable that the nation should be wary of mission creep. I can't speak for the other 419 "ayes," but I never imagined when I voted for the 2001 Authorization for Use of Military Force Against Terrorists (AUMF) that it would still be in effect in 2014. I thought that the Iraq AUMF passed in 2002 would have been repealed or replaced by now too, given that--in the opinion of the White House--it doesn't authorize anything anymore.

But CT operations sometimes snowball for a good reason. It's hard to see how the United States can pursue much longer an Iraq-only response to the increasingly regional threat of ISIL. That's exactly why Congressional action is essential: not to endorse mission creep, but to limit it. Congress can no longer sit on the sidelines, delegating to the President its Constitutional role to declare our wars. The McGovern/Jones/Lee resolution that passed overwhelmingly in the House in July barring a combat role in Iraq without specific authorization is a start--but has no legal effect, or reach beyond Iraq.

As is now clear, ISIL has ambitions across the whole of the Levant. Its pseudo-capital is in Raqqa, Syria; it brutalized Yazidis in Sinjar, Iraq; and the group claimed credit for a suicide bombing in Beirut, Lebanon. A broader mission is probably a strategic imperative, albeit one we didn't invite. My view is that Saudi Arabia and the Gulf states have their heads in the sand; left unchecked, ISIL will want Mecca as the center of its misguided caliphate.

The President knows that CT actions against ISIL will cross borders. As was recently disclosed, Obama didn't hesitate to order U.S. forces into Syria when he saw a chance to rescue American hostages held there by ISIL. An effective response (which won't and shouldn't be entirely kinetic) will inevitably be regional. Congress has a responsibility to step forward, speak clearly, and shape the breadth and limits of the mission.

Historically, Congress has acted forcefully to define the President's war powers. When the scale of our debacle in Vietnam became clear, Congress repealed the Gulf of Tonkin Resolution; the President was not to have a blank check in Southeast Asia. When President Richard Nixon insisted on prosecuting the war regardless, Congress summoned the votes to pass the War Powers Resolution and override Nixon's veto. That vote was a vital statement on the separation of powers and an impressive success for bipartisanship. The same bipartisan spirit is needed today. ISIL didn't check James Foley's party registration before brutally executing him on tape.

Though Congress has only a handful of legislative days left this election-year session, both chambers should make it a priority to schedule time to debate a new AUMF. Hearings should also consider revising the War Powers Act to strengthen its consultation provisions, as Senators John McCain and Tim Kaine have suggested.

Our CT strategy will benefit enormously from a reconsidered legal framework; our national security will be bolstered by debating coherent boundaries for combatting and defeating ISIL; and the country will be strengthened by a clear statement from the branch of our government tasked with declaring war.

I respect the President's measured approach to the crisis. All the same, the public deserves Congressional representation in this debate.

If asked to embark on a wise, just and well-defined campaign against ISIL, the American Congress--and through it the American people--will likely consent. But, in a democracy like ours, the choice is theirs.

This article was originally posted on The Huffington Post. 

Jane Harman is the director, president and CEO of the Wilson Center, represented California's 36th District in the House for nine terms, including four years as the ranking Democrat on the House intelligence committee. The opinions expressed in this commentary are solely those of the author.