Our Kind of War

Katina Slavkova | July 14, 2016

How do we justify our military actions and what is Congress’s role?

Legend has it that the late Congressman Charlie Wilson from Texas had managed to singlehandedly defeat the Soviet aggressors in Afghanistan in the 1980s by orchestrating an extraordinary covert operation that took ragged bands of fearless mujahedeen fighters to deliver a humiliating and deadly blow to the communist Red Army. This legendary narrative, made so much more powerful by the image of the forbidding geographical terrain against which it was set, became a helpful and compelling device for distilling to the American public the most fundamental aspects of a savagely exhaustive war that took place in a distant tribal land, unfamiliar and far removed from the comforts of western life.

Naturally Hollywood could not resist and in 2007, due in no small part to the tragic post-9/11 context that forced Americans to quickly get reacquainted with Afghanistan, it released a movie that immortalized the intriguing image of the dashing Texas Congressman played by none other than the terrific Tom Hanks. The legend was now complete and as the movie title implied not so subtly, the “freedom fighters” struggle against the apostate Soviet empire, became the Congressman’s war. Who would not fall for a legend like that!

Such a Manichean worldview rarely survives a deeper reading of the many shades of gray actually at play. But in light of everything that has transpired since the 2001 terrorist attacks, it is worth noting something quite instructive about this movie. In a brief scene, the movie dispenses with the simplistic narrative by inserting a rare nuanced note about unintended consequences.   In a conversation between Congressman Wilson and the CIA officer he works with, the CIA officer offers a parable of the Zen Master and the little boy.  In his telling of a Zen Master observing a little boy’s life, each seeming positive or negative event is met by the Zen Master reserving judgement, saying “we’ll see”—the boy gets a horse (“we’ll see”), but then breaks his leg (“we’ll see”), but then is able to avoid military conscription (“we’ll see”)—on and on.

Why would any of this matter? It matters because Congressman Charlie Wilson’s war has now become America’s longest war entrenched by an almost 15-year old Authorization for Use of Military Force (AUMF) which was signed into law by President Bush only seven days after 9/11. It may not be a perfectly straight line but in the end the CIA officer was right – early events can take unexpected paths.  But unlike the role of Congressman Wilson, and unlike other congressional actions on military policy such as the regular passage of the National Defense Authorization Act, Congress has largely been content to defer to the executive branch on the use of military force issues.

Presidential expansion of AUMF

The bittersweet denouement in the early 1990s of the covert Afghan operation was later followed by much tragedy, discontent and an assortment of controversial policies along the way. And in a terribly ironic twist, President Obama will now leave office in a few months with American troops (over 5000) back in Iraq and a somber recent announcement of the inevitable slowdown in the withdrawal schedule of troops from the Afghanistan theater of war. In addition, what may be even doubly ironic here for a President who won the Nobel Peace Prize is that he has also significantly expanded the geographical contours of the battlefield by authorizing further deployments of special operations forces to Syria, Libya, Somalia, and after a brief interruption, to Yemen as well. It feels as if we almost never left.

The President will also leave pretty much intact the legal framework for fighting this war. After a much heralded speech at the National Defense University in 2013, in which he promised to engage with Congress on the issue of AUMF in order to “refine and ultimately repeal” the law, the Administration only managed to produce a draft language in early 2015 for a 3-year AUMF against the Islamic State in Iraq and the Levant (ISIL) that turned out to be a non-starter with both Democrats and Republicans on Capitol Hill.

And so from Kabul to the brilliantly blue warm waters of the Indian Ocean on the Somali shore and from Baghdad to the self-proclaimed capital of ISIL in Raqqa, Syria, the 2001 AUMF lives on. President Obama, just like his predecessor in the White House George W. Bush,  has used the authorities of the AUMF to justify countless counterterrorism measures that most Members of Congress likely did not anticipate nor envision when they initially voted for the AUMF.  But oddly enough, with the exceptions of a few Members, Congress seems to be quite content with this state of affairs. And the current congressional leadership is in no hurry to bring a vote to the floor in either chamber.

Congressional inaction on AUMF

For the better part of a little over a decade since 2001, when Congress first granted the executive the expansive authority to use force against the perpetrators of 9/11, the issue of the AUMF was a sleepy one on Capitol Hill. Members of Congress hardly concerned themselves with a more detailed examination of the legal authorities vested in the legislation nor did they engage in a more routine oversight of the issue through the hearing process.

During the heavier engagement of the Iraq War, including the highly contentious debate of the so called “surge” of 30,000 additional troops in the 2006-2007 period and the subsequent deliberations in 2009 of the war strategy in Afghanistan, wider AUMF concerns constituted but a passing thought on congressional minds. Divining AUMF legalese competed with confronting the graver and more immediate problems of two major war campaigns that seemed to have lost clear strategic direction and the support of the American public. It wasn’t even close. Given an opportunity, Iraq and Afghanistan were featured prominently (as it should have been) whereas debates about authorities and implications of the 2001 AUMF were almost nonexistent.

A basic review of the hearing schedule from 2001 to present of the House Foreign Affairs Committee, whose jurisdiction include war powers and military force authorizations, reveals that committee Members convened only 4 hearings that focused exclusively on War Powers and the AUMF.  The first such meeting occurred in March of 2008, seven years after Congress first voted for the original 2001 AUMF. Its Senate counterpart, the Committee on Foreign Relations fared only slightly better. A similar review of the committee’s hearing schedule going back to January 2003 showed that Members conducted 6 hearings on the issue. By 2013 the Senate Armed Services Committee  had gotten in on the act but judging by the exchanges between Senators and Administration witnesses at that time, one could not help but conclude that the hearing had come 12 years too late.

All of this is not to say that AUMF discussions did not come up during the course of other related hearings; but forcing Congress to focus exclusively on the merits and consequences of the legislation was certainly a rare event. This is a bit disconcerting, considering that according to CRS compiled data, there have been at least 30 different occurrences between 2001 and 2013 where the President has invoked the authorities of the 2001 AUMF in order to deploy our armed forces overseas.  Some of these deployments were to Georgia and Eritrea–far away from the battlefields of Iraq and Afghanistan.

In the last two years, Congress seems to have rekindled a faint interest in the AUMF but with rare exceptions, this has been mostly in the context of trying to come up with an ISIL-specific force authorization rather than seriously debating and overhauling the legal architecture and parameters of the 2001 legislation. Aside from the “indefatigable” Rep. Adam Schiff (D-CA) who has already submitted three slightly different versions of his AUMF proposals and the most vocal Senate troika of Lindsey Graham (R-SC), Tim Kaine (D-VA) and Jeff Flake (R-AZ), not much has been going on with this issue.

The only thing that House Speaker Paul Ryan has been able to muster so far is to direct in January of this year that Majority leader Kevin McCarthy and Rep. Ed Royce,  chairman of the Foreign Affairs Committee, begin “the process of gathering ideas and having listening sessions with our members about whether and how we could do” an authorization for use of military force. But another election season appears to be a convenient excuse, yet again, for avoiding tough votes. Will the new Congress that will convene in January 2017 finally decide to address this matter?

We will see, said the Zen master!

Katina Slavkova is a Fellow and Director of the Certificate Program at the Government Affairs Institute


Categories: 114th Congress, Congressional Policy Issues, Foreign Affairs, Military Operations, National Security, Revise & Extend, Updates