When the House and Senate reconvene this week following their Presidents Day recess, one of the hot topics of debate will be the request laid at their doorsteps earlier this month by President Obama, who wants the Congress to authorize him to go after ISIS.
Aside from the question of whether the president of the United States, who serves pursuant to the Constitution as commander i chief of the armed forces, even needs such authorization, there is every good reason for the Congress not to vote another Authorization for the Use of Military Force such as the one passed in the immediate aftermath of the 9/11 attacks.
As my mom urged me more than once, in words that served me well during my years in the political arena: “Fool me once, shame on you; fool me twice, shame on me.” Unfortunately, both houses of the Congress appear predisposed to be fooled once again.
In the days immediately following the 9/11 terrorist attacks, President George W. Bush asked Congress for authority to employ military “force” against those individuals and entities responsible for or complicit in that morning’s attacks on the American homeland. Congress quickly complied.
What the Bush administration asked for — and what I and other members of the Congress believed we were granting at the time — was a limited and straightforward authorization for the executive branch to employ military “force” to go after al-Qaida and whoever else was responsible for or complicit in the 9/11 attacks. Boy, were we fooled.
No sooner did the ink dry on the AUMF than the Bush-Cheney administration began using it to justify all manner of actions, most having nothing to do with military “force,” to carry out a far-reaching anti-terrorism program of action abroad and at home. The resolution quickly morphed into a justification for massive surreptitious eavesdropping on American citizens, using torture in contravention of U.S. law, and conducting open-ended military operations in Iraq and elsewhere around the globe.
The abuse of the 9/11 AUMF continued throughout the Bush administration, and into the Obama presidency with few adjustments. And now, they want another one.
The problem here at its most fundamental is why such a thing as a resolution authorizing a president to take military action against individuals or entities that have killed American citizens and are aiming to further harm American individuals and interests, is necessary in the first place.
More important still is the question of how did a simple joint resolution of the Congress become the justification whereby the government overrode civil liberties guaranteed against such actions by the Bill of Rights; and why would the Congress even consider allowing it to happen again?
In the case of the 2001 AUMF, it was sleight of hand by the Bush administration that led Congress into thinking it was merely authorizing what the resolution stated explicitly it was authorizing — the use of force against those responsible for the 9/11 attacks. In fact, however, the resolution became the cover for the Bush administration to do whatever it wanted, wherever it wanted, and whenever it wanted, against whatever targets — domestic or foreign — the White House decided to label a “terrorist threat.”
The Bush administration correctly gambled that, once passed, Congress would not later limit the subsequent reach of the resolution for fear of being labeled “soft” on terrorism.
Today, more than 13 years later, there are those, including Joint Chiefs Chairman Gen. Martin Dempsey, who advocate another broad, largely open-ended AUMF to fight ISIS wherever and whenever its elements may be found. While some members of Congress are raising concerns over such a decision, many are not; and even among those expressing reservations, most are focusing on the specific — and important — geographic and time parameters of the resolution, not on preventing the more important constitutional abuses lurking beneath the surface.
The Congress is being asked to leave in place the broad and constitutionally-problematic 2001 AUMF, even as it gives the executive branch additional powers. Recent history tells us this is a recipe for serious constitutional mischief.
Instead of toying with another joint resolution, why not look to the Constitution, which requires that Congress fund those specific military programs it deems appropriate, prohibit those it opposes, and requires the president to operate as commander in chief within the bounds of the Constitution? That course of action, of course, would force the Congress to carefully consider and debate not only military operations, costs and responsibilities; but to understand the Constitution and the limits it places on government action.
Simply passing a resolution telling the president to “go after the bad guys” and worrying about the problems such action might cause later on, if at all, is so much easier.
Attorney Bob Barr of Smyrna is a former U.S. Republican congressman.