Momentum Builds for War Powers Reform

On August 3rd, the Senate Foreign Relations Committee (SFRC) held its long-awaited open hearing on authorizations for use of military force (AUMFs). This marks one of the first times since the so-called “Global War on Terrorism” that members of Congress—and particularly the US Senate—have moved toward reasserting their power under the Constitution and revoking open-ended presidential war powers that have seen the United States wage war or conduct military action across the Middle East and North Africa. The hearing specifically focused on repealing the 2002 AUMF against Iraq and, to a lesser extent, the 1991 AUMF against the same country.

However, as SFRC Chairman Bob Menendez (D-New Jersey) noted, the hearing was also intended to elevate the broader conversation in Washington about AUMFs and war powers. Overall, the United States currently has AUMFs on the books from 1957, 1991, 2001, and 2002; all have been or could be cited as justification for taking military action in the Middle East and North Africa. But there has been momentum to repeal and/or replace these broad authorizations: in June 2021, the House voted to repeal the 1957 and 1991 AUMFs as well as the 2002 authorization.

During the hearing, Menendez and most of his colleagues said—and the Biden Administration agrees—that the 2002 AUMF is obsolete and generally unused today. Menendez went further, arguing that not only is it obsolete, but it is irresponsible to leave the law in place, as it is ripe for abuse. Not everyone agreed. The Republicans’ position on the matter, as summarized by Ranking Member Jim Risch (Idaho), tends to be one of support for repeal but skepticism about Democrats’ preferred methods and timing of that repeal. Risch’s contention is that as long as US troops and other US interests are threatened by Iran, the 2002 AUMF is the only statutory authority the executive branch has to conduct kinetic action against Iran and its allied militias inside Iraq. This is a specious argument legally, however, because the AUMF plainly states that force is authorized “against” Iraq, not simply against Iran-affiliated groups “in” Iraq.

Deputy Secretary of State Wendy Sherman, State Department Acting Legal Adviser Richard Visek, and Department of Defense General Counsel Caroline Krass all testified before the committee that repeal of the 2002 AUMF is the right move and one that President Joe Biden fully supports. Sherman spelled out one other reason why repeal is important for US policy moving forward. Its continued existence complicates US-Iraq relations, she said, thanks to language in the preamble of the law that describes Iraq as “posing a continuing threat” to the United States and international peace and security. This is problematic considering that the Biden Administration is looking to engage Iraq as a close partner in the region.

After the debate, Democrats, with the help of a few Republicans, won the day and the committee ultimately voted to adopt S.J. Res. 10 that repeals the 1991 and 2002 AUMFs against Iraq. Due to the chamber’s looming summer recess, a full Senate vote is unlikely until later this year, but Majority Leader Chuck Schumer (D-New York) has already vowed to bring it to the floor, and there appears to be enough support to pass the measure.

While it is an important step, repealing the 1991 and 2002 AUMFs—and even the 1957 version, too—is just the first step in the struggle to reform war powers. The 1957 AUMF has never been cited as the primary justification for the use of force in the region and the Pentagon says no current military operations are based on either of the others. What is more pressing, considering that the 2001 AUMF has been used to justify military strikes from Libya to Yemen and from Somalia to Syria, is repealing—or at the very least reforming—it. Senator Menendez, one of the most hawkish members in the Senate, even argued that the law is in serious need of an update. Having supported it himself, he maintained that no one could have imagined then that the law would eventually be used to authorize military strikes in places like Somalia or against groups that did not even exist in 2001.

Repealing and replacing the 2001 AUMF is going to be an uphill battle. Rep. Barbara Lee (D-California) persuaded her Appropriations Committee colleagues to agree to a measure in the fiscal year 2022 defense budget that would sunset the law after eight months. However, it is difficult to see this getting through the House, and the legislation is all but doomed in the Senate. Nevertheless, many in Congress will seek to use this newfound momentum to at least force a larger debate on war powers and authorizations for use of force. Like Rep. Lee, progressives or others in the Democratic Party might try to insert an AUMF repeal or other provisions—like the National Security Powers Act—into must-pass legislation this fall.

One message coming from many on Capitol Hill is clear though: Congress must reassert itself in a meaningful way in the war powers debate so it can rein in the ability of presidents to wage war. In addition to being more conducive to peace, ending the president’s power to use force is simply a sound strategic goal. Citizens of the Arab world are deeply concerned about the United States’ proclivity for military action in the region. It is noteworthy that 81 percent of respondents in the 2019-2020 Arab Opinion Index said that Washington is a threat to their countries, with 29 percent of all respondents adding that the United States was the single greatest threat to the national security of the Arab world. It will take time to see a change in those figures, but Congress should do its part to restrain the liberal and unchecked use of force in order to begin building trust with the hundreds of millions of people in this region.

Also Happening in Washington

I. Congress

1) Legislation

Recognizing Islam as One of the Great Religions of the World. Rep. Al Green (D-Texas) introduced H. Res. 576 recognizing Islam as one of the world’s great religions. His resolution comes shortly after his colleagues introduced a resolution celebrating July as Muslim American Heritage Month.

September 11 Transparency Act. Senators Bob Menendez (D-New Jersey) and Richard Blumenthal (D-Connecticut) introduced S. 2654—a bill called the September 11 Transparency Act—as part of their effort to secure the declassification of information related to the September 11 terrorist attacks. More specifically, the bill would require the Office of the Director of National Intelligence to undertake a full declassification review and determine the further documentation that could be made public. There is suspicion that the US government has more knowledge about the role the Saudi government allegedly had in facilitating the attacks, and plaintiffs in lawsuits have accused Riyadh of having a bigger role than it admits.

Recognizing the Anniversary of the Explosion at the Port of Beirut. Senator Jeanne Shaheen (D-New Hampshire) introduced S. Res. 337 to recognize the anniversary of the devastating explosion in Beirut and to express solidarity with the people of Lebanon.

II. Executive Branch

1) White House

NSA Sullivan, Deputy Secretary Sherman Meet with Israeli National Security Officials. National Security Advisor Jake Sullivan hosted incoming Israeli National Security Advisor Eyal Hulata to discuss an array of issues, including Iran, Israeli-Jordanian relations, and the need for peace between Israelis and Palestinians. Deputy Secretary of State Sherman met separately with Hulata as well as with Senior Foreign Policy Advisor Shimrit Meir about many of the same issues.

Earlier, Sullivan had a lengthy conversation with Tunisian President Kais Saied about developments in Tunis. Of the many issues, Sullivan urged Saied to ensure the timely return of the elected parliament after Saied had invoked an article of the Tunisian Constitution to remove the prime minister and shutter parliament.

Biden Administration Weighs in on Lebanon. On the one-year anniversary of the Port of Beirut explosion, President Biden announced that his administration would provide another $100 million in humanitarian assistance to Lebanon, which continues to reel from economic and political instability. In a message accompanying the announcement, the president pointed out that no amount of foreign aid will completely alleviate the troubles facing the country until the government undertakes much needed reforms. As such, Secretary of State Antony Blinken and Secretary of the Treasury Janet Yellen released a joint statement in support of the European Union’s new sanctions regime that is intended to prompt Lebanon’s political class to adopt reform measures and halt endemic corruption.

2) Department of State and USAID

Secretary Blinken Speaks with Israel’s Lapid, Sudan’s Hamdok. After an oil tanker with links to an Israeli billionaire was attacked off the coast of Oman, Secretary of State Blinken spoke with his Israeli counterpart, Yair Lapid, about working multilaterally to investigate the incident. In a later statement, Blinken said the United States and others—including Israel, Romania, and the United Kingdom—are confident that Iran carried out the attack and that the sides are coordinating a “collective response.”

In a later call, Blinken spoke with Sudanese Prime Minister Abdalla Hamdok about the ongoing fighting on Sudan’s border with Ethiopia. They also discussed the ongoing political transition and developments in Sudan.

State Considering US Ambassador in Khartoum for First Time in Decades. According to one recent report, the Biden Administration is seriously considering John Godfrey, Acting Counterterrorism Coordinator at the State Department, to serve as Ambassador to Sudan. Godfrey, or any of the other potential nominees, would be the first US ambassador in Khartoum in some 25 years.

On Sudan, US Agency for International Development (USAID) Administrator Samantha Power traveled to Sudan as part of a broader trip to East Africa.

USAID to Resume Activities in Palestine. According to a report, USAID will resume its critical development work in the occupied Palestinian territories. This occurs two and a half years after the Trump Administration halted the organization’s support to Palestinians.

Biden Administration Looking to Finalize New Arms Policies. A news report stated that the State Department is finalizing a draft of the administration’s preferred Conventional Arms Transfer Policy and officials at State apprised members of Congress on the matter on August 6, after briefing a small group of congressional staffers in the weeks before. The purpose of this new policy is to center human rights as a major consideration when determining the countries to which the United States will sell conventional arms. According to an unnamed administration official, the new policies will help “build and maintain strategic partnerships that best reflect the values and interests of the United States.” Progressives and others in Congress have criticized the United States’ willingness to sell arms to notorious human rights abusers like Egypt and Saudi Arabia and the pressure appears to be working. If implemented and upheld, this new policy would likely have major implications for a host of US partners in the Middle East and North Africa.

State Department Official Meets with Saudi Foreign Minister. Saudi Minister of State for Foreign Affairs Adel al-Jubeir hosted Martina Strong, chargé d’affaires at the US Embassy in Riyadh, to discuss US-Saudi relations and regional developments.