New York Times - Obama Must Get Congress's Backing for the Fight Against ISIS

Op-Ed

By Tim Kaine

The current threat posed by the Islamic State in Iraq and Syria, or ISIS, will test not only the resolve and strategic judgment of America and its allies, but also our nation's fidelity to a basic constitutional principle.

Our Constitution reserves to Congress the power to declare war and designates our president as the commander in chief, but our recent history has been characterized by executive overreach and legislative abdication in the initiation of military action. The current crisis gives us an opportunity to restore the proper balance between the branches. America's history since 2001 should compel us to fix the way we make the significant decision to go to war.

The framers understood that the president, as the head of our armed forces, must defend the nation from imminent threat. But when the mission shifts from defense to offense, congressional approval is essential. More than two centuries ago, when President Thomas Jefferson decided to take offensive action to eliminate the threat on American ships from pirates off the Barbary Coast, he sought Congress's approval, arguing that "without the sanction of Congress," he could not "go beyond the line of defense."

The involvement of Congress is not a dry constitutional principle. By debating and voting on the initiation of war, Congress educates the public about the national interest, clarifies and refines the scope of the conflict, and reinforces the core value of political consensus.

When we engage in military action, we ask service members to risk their lives and their health, physical and mental. Even those who come home physically safe may see or do things in war that will affect them for the rest of their lives. Asking Congress to debate and vote on this issue is a small sacrifice in comparison.

Mr. Obama began airstrikes against ISIS (also known as ISIL) in August -- during a congressional recess -- to protect American lives in Iraq and avoid humanitarian catastrophe. But when the president decided last week to "go on offense" against the group, the need for congressional approval was plain. I and other senators have repeatedly called for Mr. Obama to submit this important mission to Congress, and for Congress to grapple with it in the manner required by Article I of the Constitution. The announcement last week by the chairman of the Foreign Relations Committee, Senator Robert Menendez, Democrat of New Jersey, that the committee would craft authorizing language is a positive step.

We in Congress must also heed the painful lessons from the language of the authorization of the use of military force that was enacted days after the Sept. 11, 2001, terrorist attacks at the request of President George W. Bush. In just 60 words, Congress authorized the president to take action against the perpetrators of the 9/11 attacks, but imposed no temporal or geographic limitations on the effort. Subsequent interpretations expanded the scope of action to include the broadly defined universe of "associated forces." At a Senate Armed Services Committee hearing in May 2013, representatives of the Obama administration blithely opined that the 2001 authorization could allow for war to be carried out for another 25 years, an astonishing claim that surely went beyond what Congress intended 13 years ago.

We should not be stretching the open-ended 9/11 authorization even further to cover action against ISIS, an organization that didn't even exist until years after the 9/11 attacks and is in open conflict with Al Qaeda. Instead, we should be drafting a specific, narrow authorization for limited military action as described by Mr. Obama last week: airstrikes against ISIS in Iraq and Syria, the training and equipping of forces in the region to fight ISIS, and counterterrorism operations to eliminate the organization's leadership. And we should put an appropriate expiration date on this authority, so that the president and Congress can assess progress and decide whether to continue the mission.

Additionally, the open-ended 9/11 authorization needs to be limited to a more specific framework for tackling current and future terrorist threats from nonstate actors.

We should also replace the War Powers Resolution of 1973 with a more workable system that would help solve the many constitutional controversies that that law, passed during the Nixon administration, has raised. Senator John McCain, Republican of Arizona, and I have introduced a War Powers Consultation Act of 2014. It would require the president to consult with Congress before ordering deployment into a "significant armed conflict," or combat operations lasting, or expected to last, more than seven days; create a consultation committee of congressional leaders from both parties to ensure a timely exchange of views -- not just notification -- between the legislative and executive branches; and lay out procedures requiring that all members of Congress take a vote of support or opposition for any significant armed conflict within 30 days of the start of such conflict.

Multinational action against ISIS can defeat the threat and may forge long-term alliances to benefit the region. Similarly, more intentional effort up front in considering and defining the American military response can chart a better path for future decision making on the toughest question our nation faces -- whether or not to go to war.

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