The panel’s hearing on the measure, a bill co-sponsored by Sen. Tim Kaine, D-Va., saw marked ideological splits among the panel’s Democrats and Republicans, highlighting the challenge of replacing the post-9/11 authorization for use of military force (AUMF). Those authorizations are widely considered stretched beyond their original intent.
Some lawmakers are objecting because the bill would not expire or limit the military’s expansion of counter-terrorism operations into new countries or against new groups.
While the AUMF would not authorize attacks against nation-states, it would explicitly permit continued operations against al-Qaida, the Taliban, the Islamic State and “associate forces” — offshoots like al-Qaida in the Arabian Peninsula, al-Shabab, the Haqqani Network and other groups the president designates.
The bill’s supporters say they sought to find the sweet spot between congressional oversight and micromanaging the president, acknowledging that balance had to be tilted to favor the Republican majorities in Congress.
While imperfect, the bill would “claw back some of the authority that rightly belongs to this institution,” said Sen. Jeff Flake, R-Ariz.
“We’re trying to give Congress more of a role, recognizing that we need 60 votes to pass something,” Flake said. “It’s fine and nice to talk about what’s optimal and what we should have. We deal here in what we can pass.”
Still, stiff headwinds for the measure were on full display Wednesday, as Democratic Sens. Bob Menendez, of New Jersey; Ben Cardin, of Maryland, and Jeff Merkley, of Oregon, said the bill’s lack of a sunset was a no-go. (Democratic panelists Chris Coons and Bill Nelson support the bill.)
Cardin said he was reluctant to codify successive presidents’ over-broad interpretations of the post-9/11 authorization or legal language a president could find ways to skirt.
“I don’t know of any way other than a sunset in order to preserve the rights of our constitutional protections,” Cardin said.
From the left, Merkley on Wednesday announced his work on an alternative measure that would more tightly constrain the White House. It would include a three-year sunset provision and require explicit congressional approval to use ground troops.
From the right, libertarian Sen. Rand Paul, R-Ky., opposed the proposed AUMF as a blank check for unlimited war.
“We have completely flipped the Constitution on its head,” Paul said. “The Constitution says the role is ours by a simple majority vote. Now we’re saying … we can disapprove of it by a two-thirds vote. I cannot more strongly object to doing this.”
Corker, earlier in the hearing, defended the requirement for a supermajority.
“If the president decides he wants to go into Yemen and some other place, it takes a supermajority to stop him today. If you took up a bill to stop [the president from engaging in military action], the president would veto it, and it would take a supermajority to override it,” Corker said.
He suggested Republicans in control of Congress will not favor a bill with a sunset provision.
“It’s clear today that an AUMF will not become law if it contains a sunset provision. [That’s] just the balance of power here within Congress,” Corker said. “That is not going to happen, that is not a reality.”
The proposed authorization would not expire on a specific date, but it includes a process every four years for lawmakers to review the previous authorization and vote to repeal or modify it. Congressional inaction would allow the previous authorization to remain.
An added oversight measure would require the president to notify Congress within 48 hours if and when military operations are expanded into countries beyond Afghanistan, Iraq, Syria, Somalia, Yemen and Libya, or against “new designated associated forces.”
From there, Congress could launch a two-month review period and fast-track legislation to block military action.
Both Kaine and Corker argued that if such provisions had been part of the post-9/11 authorizations, it would have forced multiple votes in Congress.
“A process in this bill would make every [White House] report [on expanded military action] a decision point,” Kaine said. “I think this is an improvement.”
The committee heard from legal experts Wednesday for and against the proposed war authorization, respectively: John Bellinger, a former legal adviser for the State Department under presidents George W. Bush and Barack Obama, and Rita Siemion, of Human Rights First.
Outside of the hearing, 24 groups announced their opposition Wednesday, in a letter to Congress. Its signatories include groups as diverse as the conservative advocate FreedomWorks and the left-leaning Indivisible, as well as the American Civil Liberties Union — which tweeted, “The new Corker-Kaine AUMF is a dumpster fire of bad ideas.”