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Democratic Sen. Tim Kaine of Virginia, after trying for 10 years, is on the cusp of getting Congress to repeal the authorizations that led the US into war against Iraq in the early ’90s and again in the early ‘00s.
Along with a Republican, Sen. Todd Young of Indiana, Kaine has support from the White House and a bipartisan coalition. He and Young told CNN’s Jake Tapper about their proposal on “The Lead” on Thursday.
I had more questions for Kaine – the most important of which is what repealing these authorizations would actually accomplish since both have fallen into disuse.
It is another authorization for use of military force, or AUMF, passed in 2001, that has kept the US military busy in multiple countries.
My phone conversation with Kaine, which has been edited for length – and which includes a history lesson about pirates – is below.
What’s the brief history of war powers?
WOLF: From your perspective, give people a brief overview of war powers. What can the president do, and what should Congress be doing?
KAINE: This was one of the most carefully debated parts of the Constitution, as the Convention was writing it in 1787.
One of the reasons it was so carefully debated was that they were doing something intentionally very different from other nations, which had tended to make initiation of war a matter for the king, the emperor, the monarch, the executive.
Article 1 basically says that Congress has to declare war by vote. Congress also has the budgetary power to fund government, including defense.
Article 2 makes the president the commander in chief. The presumption is Congress votes to initiate, but then the worst thing that you could have is 535 commanders in chief. So once there’s a vote to initiate, the power to manage any military action goes over to the executive.
The debates at the time and in the years immediately after made claim that the commander in chief has the power to act without Congress to defend the United States against imminent attack. Defense can always be done by the executive, but if you want to go into offensive military action, you need a congressional vote.
That’s very, very clear.
The reason for it is clearly stated in the debates. The notion is you’d want to have the people’s elected representatives debate, in front of the public, whether a war was in the national interest, where you commit troops into harm’s way, where they risk life and limb.
However, from the very beginning, Congress has often abdicated their responsibility to the executive because war votes are politically tough.
Whigs and Federalists and then Republicans and Democrats in Congress have often deferred the power to presidents of all parties. That’s a very sloppy trend that I was intent upon trying to reverse when I came into the Senate 10 years ago.
We’re obviously not at war with Iraq’s government. Why bother repealing these authorizations?
WOLF: We’ve had peace treaties end wars. Technically, I suppose, the Korean War is still going on. Why is it important to do this with regard to Iraq right now?
KAINE: The Korean War is under a ceasefire, but there’s no peace treaty that ends the war. A lot of people are surprised at that.
In this case, both Sen. Young and I strongly believe that Congress needs to take the power back to declare war, but then also to declare when a war is over.
In the case of Iraq, we declared war against the nation of Iraq first in 1991 to expel Iraq from Kuwait, and then in 2002, to topple the government of Saddam Hussein and the Baath Party.
Obviously, the Gulf War was over pretty quickly, and Iraq was expelled from Kuwait. The Saddam Hussein Baathist government was toppled. And so our war against Iraq is no longer ongoing.
But in particular, Iraq is no longer an enemy. Iraq is now a security partner. We’re working closely with Iraq, at their invitation, to battle terrorism – ISIS – and we’re also working with Iraq as a security partner to try to counter Iranian negative influence in the region.
The way Sen. Young and I look at this is, first, this is a congressional power that we should take seriously.
Second, it’s wrong to have a war authorization live and pending against a nation that we’re now working in cooperation with.
Third, if you have a war authorization out there that’s not really needed, it offers an opportunity for mischief that a president can seize upon and use it and say, oh, see, Congress was given the authority to do this.
That’s another reason why when a war is over, Congress should retire the authorization so that a president would have to come back to us if a president decides that military action is needed.
Presidents have argued they don’t need these authorizations even when they ask for them
WOLF: I was reading a Congressional Research Service report about these two authorizations, and when they were invoked, both George H.W. Bush and George W. Bush said something to the effect of, “Thanks for passing this resolution, but I didn’t actually need it.”
George W. Bush in 2002: “… my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.”
George H.W. Bush in 1991: “As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution.”
It sounds like the presidents who asked for these resolutions also feel like they didn’t entirely need them. Do you agree with that?
But there is a fine line sometimes between what is an action taken in defense – and presidents do have the power to defend the nation from an imminent threat, ongoing attack or an imminent threat of attack – and what is an offensive action.
From the very beginning (Thomas) Jefferson confronted this as president. The Barbary Coast pirates, who were connected to the nations of North Africa, were invading American shipping in the Mediterranean. And Jefferson believed, OK, I’m commander in chief, I can order my naval ships to fire on and defend themselves from these attacks.
But he then was like, well, do I want to just defend repeated attacks or would I like to send the Navy into the ports to basically destroy the ships that are attacking us? And Jefferson said, look, in that instance I need to have Congress. The line between what is defense against an imminent attack versus what is an offensive action – that can be a little subjective. It’s not always clear.
But there was a reason why both Presidents Bush went to Congress.
This was an instance where the presidents did the right thing. They went to Congress to get the authorization.
I was highly critical of the Iraq war authorization in terms of the timing. Remember, this was brought to Congress in October of ’02, right before a midterm election.
The invasion didn’t start till March of ’03.
We’re actually coming up on the 20th anniversary of the invasion on March 19.
I was very critical of the timing at the time – it looked like it was being done to potentially electioneer. But at least the president did include Congress, and Congress voted for the authorization.
But it’s long past time that we should now retire them.
What about the force authorization the military still uses?
WOLF: The US military has not been using this authorization to justify military action since 2009. But the US military has been very active in Iraq, just with a different authorization or with the agreement of the Iraqi government.
In fact, every year, the White House tells Congress where the military has been active using military force in the preceding year. In 2021, the unclassified version of the report lists actions in Iraq, Afghanistan, Syria and Somalia. And they were all justified by the 2001 AUMF relating to terrorism.
So I’m just wondering what the functional effect of your proposal is, if it’s not going to stop US troops from being active in Iraq.
KAINE: Well, you’re right on a couple of points.
This authorization has not been used for those actions.
The 2001 authorization to take action against terrorist groups that have some tie to those who perpetrated the 9/11 attack is still a live authorization, and in my view that needs to be rewritten.
I have a twice introduced revisions to the 2001 authorization that would more narrowly specify which terrorist groups and under what circumstances the US could use military action against them. I don’t yet have a bipartisan consensus on that sufficient to move forward, but I’m continuing to work at it.
My view has always been: Let’s repeal the clearly outdated authorizations.
The Biden administration agrees this (the 1991 and 2002 Iraq authorizations) are outdated and, as indicated, they would sign and repeal. Let’s repeal those. Then we can approach the question of narrowing and rewriting the 2001 authorization after 20-plus years.
My last goal is to try to rewrite the War Powers Resolution of 1974 (it’s actually of 1973 and more commonly referred to as the War Powers Act) to clear up some ambiguities and have a more robust consultative process between the Article 1 and Article 2 branches about any questions on war.
How would you change the open-ended 2001 authorization that is still used?
WOLF: How would you hem in that vastly more used 2001 resolution? We’ve been in 15 countries and conducted scores of military operations based on that authorization. The US government feels it can essentially go to war against anyone it wants to by saying that there are terrorists.
What you’re doing right here with the Iraq resolutions in one way takes power away from the president, but he has vast power that we’re not even talking about. How would you hem him in?
KAINE: The 2001 authorization doesn’t clearly define the enemy. And it imposes no geographic or temporal restrictions on the war authorization. So it’s a completely open-ended, 60-word authorization.
It has some definition of the enemy. It suggests a non-state terrorist organization has to have some connection to those who perpetrated the 9/11 attack. So you have al Qaeda. But then al Qaeda has all these splinter groups – the Taliban has all these splinter groups.
It has been used against organizations that may claim an allegiance to al Qaeda but that had never engaged in any hostile activity against the United States.
In Africa, for example, we’re often engaged against organizations that may be terrorist organizations, may claim that they’re Africa’s al Qaeda affiliate, but their actions are directed against other governments in the region and they’ve not had any hostile intent or action against the United States.
The versions that I have introduced earlier look at temporal restrictions and geographic restrictions. They require more of a notice to Congress, sort of like the State Department can designate Foreign Terrorist Organizations requires more of an advanced notice to Congress. If the administration believes that this particular terrorist group poses threat – some opportunity for congressional engagement either to approve or disapprove, if such notice is given.
I’m in a car and I didn’t pull up my previous drafts on this, so I’m doing this from memory. But it would basically be a tighter definition of who the group is, with more notice to Congress and temporal and geographic restrictions, and probably an AUMF that would sunset periodically unless Congress authorizes it.
Why has this taken so long?
WOLF: You’ve been working on this for 10 years. It seems like a no-brainer since this authorization hasn’t been used since before you were in the Senate. Why has it taken so long? Is it inertia? Is it a fear of taking power from the president?
KAINE: Well, I think you put your finger on it.
First, I will say the Biden administration is the first presidential administration that has said we would gladly sign this. The Obama administration was unclear. The Trump administration fought it very hard and would not agree that we should repeal this authorization.
In a narrowly divided Congress, if you’ve got a hostile executive that doesn’t want this to be sunsetted, you start with a lot of votes against you.
So having President Biden, who was on the Foreign Relations Committee for 36 years, who wants to be robust in Article 2 power but also understands Article 1 power, that’s really helpful.
Second, I’ve just seen this, Zach, in the 10 years that I’ve been in Congress and starting in a lonely position on this. I’ve just seen more and more members reach the same conclusion I have, that open-ended war declarations are bad for a variety of reasons, and they’re ultimately an abdication of a congressional role.
That should be probably the most jealously guarded thing we do. You can see from the 22 senators that have co-sponsored this, and you can see from the House members who’ve co-sponsored it, a really wide ideological breadth.
That wouldn’t have been the case when I started on this in 2013. But I think there’s a growing recognition that Congress needs to claw back some of this power.