LEGAL MANDATE FOR UNLIMITED WAR?

CORKER-KAINE AUTHORIZATION

FOR USE OF MILITARY FORCE 2018

Ruins of Libya after Obama's disastrous attack in 2011.

THIS COULD POTENTIALLY GIVE THE PRESIDENT

INDEFINITE AUTHORITY TO WAGE WAR AND DETAIN CITIZENS.

Would the recently introduced Corker-Kaine Senate bill give the President a blank check to wage war indefinitely?

On April 16th, 2018, Senators Bob Corker and Tim Kaine introduced a bill with the purpose of updating the authorization for the use of military force (AUMF). If passed, these bills would replace the 2001 and 2002 bills that authorized the wars in Afghanistan and Iraq.

"There have been a number of efforts over the years to update these authorities, and while there is still work ahead, I am pleased that we have reached an agreement on a product for the committee to consider," said Senator Bob Corker. (The Hill).

In addition to Corker, Senators Tim Kaine (D-Va.), Jeff Flake (R-Ariz.), Christopher Coons (D-Del.), Todd Young (R-Ind.) and Bill Nelson (D-Fla.) are supporting the bill.

However, there are many critics of the bill that are saying it would dramatically expand the President's authority to wage war. The language of the bill states that the President would have the authority to expand the current war against various terrorist groups to new enemies and new locations of the President's choosing. Some critics are saying this language is broad enough that it could potentially give the President the power to wage war against anyone.

The text of the Corker-Kaine bill states its purpose is the following: "To authorize [the president] the use of military force against the Taliban, al Qaeda, the Islamic State in Iraq and Syria, and designated associated forces, and to provide an updated, transparent, and sustainable statutory basis for counterterrorism operations."

Under both the Constitution and the War Powers Resolution of 1973, the President may legally use military force only when authorized to do so by Congress, or in immediate response to an attack of the United States, its forces abroad, or our treaty partners. However, under the Corker-Kaine bill, the president is authorized to use force — and will not only remain authorized, but will be able to expand or change the authorization unless Congress passes a bill ordering him not to. And even if such a bill did pass, it would still be subject to presidential veto.

DETENTION WITHOUT TRIAL OF ORDINARY AMERICANS

The Corker-Kaine Senate bill also could greatly expand the President's indefinite detention powers. The National Defense Authorization Act of 2012 expanded the powers of the executive branch, giving the President the power to hold individuals, including U.S. citizens, in military detention indefinitely. However, the NDAA offered some weak restraints to this power. In theory, the NDAA's provisions only applied to someone involved in the 9/11 terrorist attacks. If the Corker-Kaine Senate bill becomes law, as currently written, any president, including Donald Trump, could claim extraordinarily broad powers to order the military to imprison any citizen, captured in America or not, and hold them without charges indefinitely. (The Intercept)

HISTORY OF WAR POWERS ACT AND AUTHORIZATION FOR THE USE OF MILITARY FORCE (AUMF)

After the Vietnam War, Congress tried to reclaim some of its authority by passing the 1973 War Powers Act, to mandate that if a president sent troops into hostilities, they could stay only 60 to 90 days unless Congress approved the deployment or extended the time period. In recent years, executive branch lawyers have concluded that presidents may act unilaterally if they decide that a strike would be in the national interest and that it would fall short of an all-out war involving ground troops. Congress, reluctant to be held accountable for putting troops in danger, and wary of challenging presidents, largely acquiesced. This was the case until the September 11th, 2001 terrorist attacks, when Congress passed an Authorization for the Use of Military Force to cover American-led operations against Al Qaeda and the Taliban in Afghanistan. In 2002, it passed a second authorization, to cover the war in Iraq. Although 17 years have passed since the 9/11 terrorist attacks, President Obama and now President Trump kept using the same authorizations to justify operations against the Islamic State (ISIL) and other groups that didn't exist in 2001 and to legitimize operations in many other countries, including Yemen, the Philippines, Kenya, Eritrea and Niger.

Under the Kaine-Corker proposal, these 2001 and 2002 authorizations would be replaced with ones that approve the use of force not just against Al Qaeda and the Taliban, but also against six groups that were not in the 2001 authorization: the Islamic State, Al Qaeda in the Arabian Peninsula, the East African group Al Shabab, Al Qaeda in Syria, Al Qaeda in the Islamic Maghreb and the Haqqani Network, which operates in Afghanistan and Pakistan. It would also increase the countries where force is authorized to include Syria, Yemen, Somalia and Libya.

However, what is significant, is that a president in the future could add to these lists more terrorist groups and "associated forces" that are successors to existing terrorist groups as well as other countries, and could carry out operations involving them just by informing Congress within 48 hours of acting. Because of the broad provisions of the Kaine-Corker bill, this could bless military operations in perpetuity. Congress would be unlikely to muster the two-thirds majority needed to take away an authorization once it is enshrined into law or is added on by a president.

OPPOSITION TO CORKER-KAINE BILL

Joining others who have already made their opposition clear, Representative Barbara Lee (D-Calif.)—who in 2001 was the sole member of Congress to vote against the original Authorization for Use of Military Force in the wake of the 9/11 attacks—is raising her voice. She says the Kaine-Corker bill would only strengthen, not curb, the "blank check for war" that Congress has bestowed on the President. Lee warned it "would continue all current military operations, allow any president to unilaterally expand our wars, and effectively consent to endless war by omitting any sunset date or geographic constraints for our ongoing operations." According to Lee, the legislation actually "further limits Congress's role in war making by requiring a veto-proof majority to block military action from the president." (Common Dreams)

Amnesty International also came out strongly against the Corker-Kaine bill. "Since 2001, the U.S. has been operating as if the world is a permanent battlefield, at the costs of thousands of lives, including large numbers of civilians," the group declared. "Despite this, President Trump has reportedly expanded authority for air strikes outside of war zones, and expressed shockingly callous disregard for civilian casualties. The last thing President Trump needs is a renewed open-ended authorization that gives him a blank check to perpetuate endless war, which is exactly what this proposed bill represents."

The ACLU and Win Without War are floating petitions they plan to present to Congress on this matter.

The bill, wrote Elizabeth Goitein of New York University’s Brennan Center, “would codify, not end, the forever war.” (Brennan Center for Justice).

The New York Times said the bill was “too broad and could bless military operations in perpetuity”—and might even, the editors argued, “be used by the Trump Administration to go to war against Iran or North Korea.”

Scott Anderson and Molly Reynolds of the Brookings Institution called the supposed congressional check on the executive “a fast track to nowhere.” (Lawfare)

Bruce Ackerman of Yale Law School, who has crusaded for years against executive war-power lawlessness, warned in an email that, because the bill allows a president to veto a disapproval bill, Corker-Kaine “is an effort to repeal, and not merely (radically) reinterpret, the War Powers Resolution of 1973.” (The Atlantic)

RESPONSE TO OPPOSITION

In a Washington Post op-ed, Kaine wrote that the resolution was “a true bipartisan compromise.” He dismissed criticism that the bill would expand presidential power as “just false. Our proposal is a dramatic improvement over the current blank check that Congress has handed Trump.” (The Washington Post)

Sarah Peck, the communications director for Kaine, responded to the criticisms: “The resolution’s definition of associated forces is dramatically narrower than the current open-ended definition. Unlike the 2001 AUMF, Corker-Kaine explicitly says it can’t be used by the president to launch military action against other nations.” She added, “This is Congress’s best opportunity to prevent Trump from unilaterally launching a war against Iran, Syria, or North Korea.” (The Washington Post)

However, the Senate Foreign Relations Committee needs to hold hearings to examine publicly how there can be a more effective congressional check on the president’s ability to begin military operations so that the war on terrorists isn’t used as cover to fight any enemy, anytime, anywhere.

LEGAL MANDATE FOR UNLIMITED WAR?

CORKER-KAINE AUTHORIZATION

FOR USE OF MILITARY FORCE 2018

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