There’s No Consensus on US Middle East Policy; Time to Apply the War Powers Act

With US-Iran relations in crisis following the American assassination of Major General Qassem Soleimani on January 3, the House of Representatives voted 224 to 194 six days later to curtail President Donald Trump’s powers to go to war with Iran. Legislation introduced by Senator Tim Kaine (D-Virginia) to require congressional approval for military action allegedly has enough Republican votes to pass, but this may not have much of an effect. The House resolution was not binding, and Senate action is uncertain, particularly in the hubbub of the president’s impeachment trial. In any case, the president is likely to ignore or veto a potential congressional action tying his hands, if one were forthcoming.

The House vote is symbolic of a longstanding controversy: the struggle between the executive and legislative branches about constitutional supremacy in the declaration of war. But it also reflects deep political divisions among Americans themselves concerning not only the powers of the presidency, but also the advisability and feasibility of America’s long-term involvement in the Middle East.

Instead of focusing on whether Congress can enforce the War Powers Act over a presidential veto in highly charged political circumstances, the US government should focus on war powers legislation as an instrument of consensus, particularly in the Middle East, where arguably most of America’s real or potential conflicts are concentrated. By agreeing to submit US military actions in the Middle East to up or down congressional votes, the executive could compel the legislative branch to decide where the latter really stands. The legislative branch could also reciprocate. It is important to understand that the American public would be the beneficiary in both cases. Likewise, the American public could stand to strive for a bit of clarity in its own thinking as well.

The US government should focus on war powers legislation as an instrument of consensus, particularly in the Middle East, where arguably most of America’s real or potential conflicts are concentrated.

History of Disagreement

Divisions on the Middle East have been on stark display at least since President George W. Bush took the United States into wars with Afghanistan and Iraq in the first years of the 2000s. The intensification of American military involvement in the broader Middle East fractured whatever consensus may have existed on US interests and strategy in the region and led to the present moment of disagreement and dysfunction. President Trump has given voice to this moment, railing against America’s “endless wars” in the Middle East. He has vowed to pull out US troops not only from the entangling conflict in Syria but also from regional commitments to long-standing security arrangements. In so doing, Trump has continued a policy line of President Barack Obama, who also believed that the United States was overextended in the region and needed to pull back.

Both presidents had considerable difficulty building consensus around this preferred policy option. Trump’s vacillation and reversals, in addition to confusing friends and foes alike, bred disagreement among the public and dissension within his own administration. Former Defense Secretary James Mattis resigned in December 2018 because of Trump’s tweeted decision to pull troops from Syria, one that was later partially reversed (before being reversed again). Obama’s 2011 move to withdraw American troops from Iraq likewise produced controversy and thorny policy outcomes, and his “pivot to Asia,” a strategy designed to refocus US attention away from the Middle East and toward allegedly higher priorities, did the same.

Polling data has shown that large numbers of Americans, including growing majorities of veterans who served in the Iraq and Afghanistan wars, support a US pullback from military entanglements in the Middle East.

The US public, just like its elected leaders, has been conflicted on the wisdom of US involvement in the region. Polling data has shown that large numbers of Americans, including growing majorities of veterans who served in the Iraq and Afghanistan wars, support a US pullback from military entanglements in the Middle East. Foreign policy elites have begun to express similar doubts about the wisdom of continued US involvement in the region, particularly the extended military deployments that have often involved the United States in belligerent action. Odd alliances among otherwise staunch congressional foes have begun to form in opposition to war with Iran, reflecting general disquiet with key aspects of American policy in the region. Some former senior diplomats who have dedicated their careers to managing the Middle East’s most intractable problems—respected figures who have guided US diplomatic engagement there for decades—have begun to conclude that the region is no longer worth America’s time and effort.

More History—and More Than a Little Controversy

The late Senator Arthur Vandenberg (R-Michigan), former Chairman of the Senate Foreign Relations Committee, famously said in 1947 that “we must stop partisan politics at the water’s edge.” If that noble sentiment were ever a lodestar to any politician, it ceased being so about the time the Cold War wound to a close 30 years ago.

Today, fights over war powers are a main arena in the ongoing struggle between the legislative and the executive branches over foreign policy. They are really about America’s role in the Middle East and, more broadly, the world.

The legislative history of the War Powers Act reflects this constant struggle between the executive branch, Congress, and the people they represent. The Act was passed in 1973 over a presidential veto to restrain President Richard Nixon’s latitude to wage war in southeast Asia. The law was intended to reinforce Article 1, Section 8 of the US Constitution, which grants Congress the sole authority to declare war. (This has occurred only 11 times in American history, most recently in 1942.) It allowed the president to send US forces abroad, but required him to report the action to Congress within 48 hours. Congress then had 60 days to approve or reject the president’s action.

This requirement has been more often honored in the breach than the observance. President Ronald Reagan’s intervention in Grenada in 1983 prompted congressional dithering that was exacerbated by concern over Lebanon, where the United States had also recently intervened. The George H.W. Bush Administration’s invasion of Panama likewise prompted talk but no serious action. No president has formally accepted the constitutional validity of the Act’s restraint on presidential powers, and the Supreme Court has never ruled one way or the other. That the court has refused to do so is largely because disputes over war powers have usually broken down over partisan lines, with Republican and Democratic legislators defending the prerogatives of the president of their own party, not often promising grounds for Supreme Court review. Neither President Barack Obama (Libya, 2011) nor President Trump (Yemen, 2019) were sufficiently discomfited by congressional invocation of the Act to reverse their military actions abroad.

No president has formally accepted the constitutional validity of the Act’s restraint on presidential powers, and the Supreme Court has never ruled one way or the other.

Long Live the AUMF—?

In the absence of strict application of the War Powers Act, US military interventions in the Middle East have been governed by the Authorization for Use of Military Force (AUMF), first passed in the wake of the September 11 terrorist attacks. A second AUMF passed by Congress in 2002 permitted US action against Iraq. The first authorization gave broad congressional approval for US military action directed against any and all persons or countries who “planned, authorized, committed, or aided the terrorist attacks” or who “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” The 2002 authorization permitted the Bush Administration to “defend the national security of the United States against the continuing threat posed by Iraq” and to “enforce all relevant United Nations Security Council resolutions regarding Iraq.” Both the 2001 and 2002 AUMFs noted that their statutory authority derived from the original War Powers Resolution, whose requirements were therefore reinforced.

However, as with the War Powers Act itself, successive administrations have blown past these general parameters and utilized them to justify multiple military actions in the Middle East, despite numerous challenges. The White House has responded, on occasion, to the political clamor. The Obama Administration presented draft language for an updated AUMF in 2015, with the caveat that it did not believe this legally necessary. Even with this broad opening, Congress failed to take the opportunity to assert its own prerogatives, once again falling victim to political squabbles.

It should come as no surprise, therefore, that AUMF authorities have continued to engender enormous controversy over the years. Partisans on both sides have decried the laws’ role in perpetuating conflicts that have cost American lives and hundreds of billions—possibly trillions—of dollars and led to hundreds of thousands of civilian casualties in Iraq, Afghanistan, and elsewhere. The AUMF became a major topic of the latest Democratic debate on January 15 between presidential contenders and the controversy shows no signs of abating.

Application of War Powers Act Is Critical to Legitimacy

The continual partisan churn over the applicability of the War Powers Act to particular disputes in the Middle East tends to deflect attention from the central issue: how much power should the executive be granted to wage war, with the personal discretion of the White House incumbent, and what the proper constitutional role of Congress is in circumscribing that power. The latest crisis with Iran is helping to bring that very issue to the fore and some new signs of bipartisan consensus have emerged lately.

Congress must first resolve its own internal disagreements on presidential war powers or devise new legislation that would offer binding clarity. In the meantime, though, it would be important for policy-makers to consider more seriously the advantages of routinely applying the War Powers Act to US engagements in the Middle East.

Submitting US military engagements in the Middle East to votes under the War Powers Act would require a degree of bipartisan congressional consensus that would, in turn, help command broader support from the American public.

Submitting US military engagements in the Middle East to votes under the War Powers Act would require a degree of bipartisan congressional consensus that would, in turn, help command broader support from the American public on the purpose, size, composition, and duration of US military commitments in the Middle East. It would also put American allies—particularly those in the Gulf Cooperation Council—on notice that US involvement in their defense (and in their internecine conflicts) comes with limitations prescribed by a broad consensus of the US political system.

Failing an agreement between Congress, the White House, and the courts on the routine applicability of the Act, a legal restructuring of the AUMF would serve a similar purpose. As some 2020 presidential candidates have argued, replacing the current authorization with time-limited, renewable joint resolutions—perhaps tailored to specific situations and requiring regular congressional review—would help ensure that both Congress and the White House remain in sync on how, and indeed whether, to pursue military activities in the Middle East. This would have a salutary effect on how the United States conceives of and executes its overall approach to the region.

Politics might once again stop at the water’s edge. And given that the water, these days, is most often that of the Gulf, such a reorientation would make for a stronger, more unified, and more coherent American approach to the region.

Charles Dunne is a Non-resident Fellow at Arab Center Washington DC. To learn more about him and read his previous publications click here