Ron Edmonds/AP Photo
President George W. Bush signs a resolution authorizing the use of force against Iraq, October 16, 2002, in the East Room of the White House.
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
Even as America’s military footprint has dramatically expanded across two decades, Congress’s war powers have atrophied for lack of use. America’s founders intended for the act of going to war to be slow, challenging, and deliberate. But with a generous Pentagon budget, limited congressional oversight, and the secretive nature of special operations forces, going to war has never been easier!
Checks on war have eroded not through legal or constitutional changes, but through Congress’s dereliction of duty, with the complicity of the executive branch. The good news is that altering this reality does not require changing law. If President-elect Biden is serious about ending endless wars, leading with diplomacy, and using force only as a last resort, as his foreign-policy platform indicates, he need only end the practice of actively overstepping the bounds of executive authority. Just because Congress will allow it does not mean Biden is obliged to do it.
President-elect Biden should encourage Congress to rein in ongoing military activity. But there are steps Biden can take even if Congress is unwilling to take war decisions back where they are meant to be.
President-elect Biden does not need a compliant Congress to raise the threshold for expanded military engagement.
Haunted by the 2002 decision to authorize war in Iraq, members of Congress would just as soon avoid the hard votes for war. As a result, for 20 years now, successive U.S. presidents have relied on the 2002 Iraq War authorization and the 2001 Authorization for Use of Military Force (AUMF) as cover to launch at least 41 operations in 19 countries. While the language of the 2001 AUMF is overly broad, its continued application has exceeded the reasonable bounds of even the most generous interpretation of an authorization intended to retaliate against those involved or supporting those involved in the September 11, 2001, attacks.
President-elect Biden should resolve not to launch any new military action under the auspices of either the 2001 or 2002 AUMF. Efforts to repeal each have gained support in recent years, particularly in the wake of reckless actions by the Trump administration. The unlawful assertion of the 2002 AUMF as justification for the assassination of Iranian Gen. Qassem Soleimani in January 2020 is one example of the dangers of still having it on the books. Congress must take action to repeal the AUMFs, but President-elect Biden does not need Congress’s approval to choose not to use them, and choosing not to decisively would send a powerful message, breaking the long-established precedent.
Biden should announce at his inauguration that he will no longer rely on these outdated authorizations and that he will wind down the global War on Terror unless Congress passes new authorizations for military action for each specific country where it wishes the United States to continue its military engagements. This would force Congress to consider and either specifically reauthorize these activities or not. Recently, Congress has recoiled on a bipartisan basis against suggestions that military operations might be drawn down. Congress might react differently if it were tasked specifically with the decision to authorize ongoing operations. For any such operations not reauthorized by the end of 2021, the Pentagon would be instructed to prepare for an orderly and timely withdrawal. If Congress chooses not to let these activities lapse, it would need to hold hearings to assess the impact, costs, and outcomes of specific military engagements.
This is exactly the kind of transparency and oversight U.S. law demands and the American public deserves. Our servicemen and -women deserve this level of scrutiny too. President-elect Biden’s most consequential move on the use of our armed forces could be to push the decision to use them back to Congress where it belongs, rather than in the authority of a single individual.
President Barack Obama twice attempted to push Congress to pass a new AUMF, one for Syria in 2013 and another in 2015 to address ISIS. Neither passed, but that fact did little to rein in overall military use on those fronts during the Obama administration. This might be presented to President-elect Biden as a warning sign of tangling with Congress over war. But five years ago, during the last attempt in the face of a growing ISIS threat (in no small part due to U.S. mismanagement of postwar Iraq), America was in a different place. Public opinion has shifted. A poll in August of this year by the Charles Koch Institute showed that Americans strongly support bringing our troops home from Afghanistan (76 percent) and Iraq (74 percent) and a plurality want the United States to be less militarily engaged around the world generally (48 percent).
Biden should announce at his inauguration that he will no longer rely on these outdated authorizations.
Today, the global War on Terror no longer addresses our greatest national-security threats, as an ongoing pandemic makes clear. Fear that an out-of-control executive could drag us into a new endless war has grown palpably under the Trump administration. While tangling with Congress in today’s politics is never appealing, nothing prevents the Biden administration from stepping aside and letting Congress do its job. Congress might find it unpalatable to authorize war acts anew in some of these locations, and that might be just fine. If the continuation of specific military operations cannot be clearly defended, they should not continue. The bar should not be higher to end military engagements than to keep them going.
President-elect Biden does not need a compliant Congress to raise the threshold for expanded military engagement. He can force it by not facilitating war himself, and he can also shift the culture within the executive branch.
A simple step would be to reinstate the limitations on lethal force that were in place under the Obama administration. The Trump administration did not publicly release its new rules governing direct action reportedly revised in 2017, but reports indicate several limitations were eroded. He reportedly lowered the standard for targeting terrorists outside an active war zone and removed the high-level vetting requirement for drone strikes and counterterrorism raids. Biden should revisit these direct-action guidelines and reinstate limitations, oversight, and higher-level vetting to ensure direct lethal action has proper accountability and that the efficacy of these actions is routinely considered.
President Trump also rescinded an Obama-era order that required civilian casualties outside areas of active hostilities to be reported, whether the result of military or CIA activities. Biden is well within his authorities to reinstate such reporting to ensure transparency of the costs and impact of our ongoing military activities across the globe.
Biden can go further, too, to request the Departments of Defense and State evaluate the efficacy of existing security assistance and military programs overseas. He need not wait for Congress to do so. Biden could signal the importance of accountability and transparency in our military activity by launching a civilian-led interagency task force to review our existing military operations, their goals, costs, and results. These questions are readily asked of our humanitarian and development engagements, and reports of these results are the foundation of future decision-making for programming in these areas. Our lethal activities should require no less, and providing such review within the executive branch could help kick-start and inform congressional review while also signaling that Biden is not punting military decisions but taking steps to ensure they are thoughtful, deliberate, and informed.
