Congress looks to Biden as an ally as it tries to finally rewrite authority for the war on terror

There’s a new movement afoot to finally curb the President’s 9/11 war powers, and the Republicans and Democrats pushing it have hope in a key ally: the President himself.

On the heels of President Joe Biden’s military strikes in Syria, a bipartisan group of lawmakers thinks there’s new momentum to finally replace those legal authorities, used to fight terrorism across the globe for nearly two decades.

It’s a push that has been stalled for years, as congressional advocates of curbing the executive branch’s war powers sought to rewrite the laws for more than a decade. But lawmakers say there are key reasons this time could be different: consensus is shifting to their side, they argue, as the 2001 and 2002 war authorizations drag on year after year, and they have an advocate they previously lacked — a former Senate Foreign Relations Committee chairman now sitting in the Oval Office.

“We have a President who really understands. Biden was foreign relations chairman. He knows war resolutions comes through the Senate Foreign Relations Committee,” said Sen. Tim Kaine, the Virginia Democrat who has long led the push for a re-write of the war authorizations and expressed frustration that the Biden administration didn’t sufficiently notify Congress of its February military action in Syria.

The effort still has a long way to go to reach any agreement. While Republicans and Democrats alike have expressed a desire to update the 2001 Authorization for Use of Military Force, which authorized the global war on terror, and the 2002 authorization for the Iraq War, the consensus has been bogged down amid disputes over how a new authorization would deal with the scope of the mission, time constraints and the use of US ground troops.

Congressional Democrats took the first step toward curbing the executive branch’s legal authorities on Thursday, when the House Foreign Affairs Committee debated and advanced legislation that would repeal 2002 Iraq War authorizations in a 28-19 vote. Supporters of the bill from Rep. Barbara Lee — the California Democrat who was the lone “no” vote in the House on the 2001 war authorization — argue it removes from the books authorities no longer needed, since the US is no longer fighting against Iraq.

“It’s an interesting coalition of folks across the ideological spectrum who recognize that having our foreign conflicts essentially operating on auto-pilot is not good for the country, not good for accountability,” said Rep. Peter Meijer of Michigan, an Iraq War veteran who was one of two Republicans to vote for Lee’s bill and is part of another bipartisan bill to repeal both the 2002 and 1991 Iraq AUMFs.

But critics say they are opposed to taking steps in Congress that could limit the executive branch’s ability to fight terrorism.

“We just have to have that option out there because we’ve got dangerous people there,” said Sen. Jim Inhofe of Oklahoma, the top Republican on the Senate Armed Services Committee.

The opposition to repealing the Iraq War authorization is an early signal of the much bigger challenge ahead for lawmakers who are gearing up to try to rewrite the 2001 war authorization, the expansive resolution passed three days after the September 11 attacks that’s still in use today and allows the US military to operate across the globe.

Advocates for placing checks on the executive’s war powers face a high-wire act to strike a balance that satisfies hawks in the Republican Party, anti-war advocates in the Democratic Party and an executive branch that doesn’t want its hands tied.

It’s the kind of complicated policy fight that often lacks the urgency to move forward in a Congress that shifts from crisis to crisis, and it remains to be seen whether the Biden White House will want to spend the political capital — and limited floor time — to effectively place some limits on how they use force to combat terrorism around the world.

“They’re not going to be the ones driving this train — it’s got to be … people in Congress that are really pushing it,” said Oona Hathaway, a Yale Law professor and Obama administration Pentagon special counsel who testified this week before the House Foreign Affairs Committee on the issue.

“There’s a lot of other things that are going to be priorities. Limiting his own authority going forward may not be high on that list, particularly if it turns out it’s highly controversial,” Hathaway added. “The question is, how controversial?”

White House signals its support

After the Biden administration launched air strikes in Syria last month targeting Iranian-backed military groups, the White House set up a call between Kaine and Biden’s national security adviser Jake Sullivan. The Biden administration didn’t cite the 2001 or 2002 war authorization, instead relying on its Article II authority to act in self-defense, a justification Kaine and other senators have questioned.

Kaine told CNN that the conversation with Sullivan turned to war authorizations and the legislation Kaine was introducing with Sen. Todd Young, an Indiana Republican, to repeal the 2002 and 1991 Iraq war authorizations.

Several days later, White House press secretary Jen Psaki touted Kaine’s efforts and said the White House was “committed to working with Congress to ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”

The public show of support “came as a surprise to me,” Kaine said, “but it showed me they really were listening.”

Administration officials haven’t publicly gone beyond Psaki’s initial statement, but say the interest from the White House is genuine. Psaki’s statement reached Capitol Hill at the same time it hit the in boxes of reporters — a sign that the intent is serious, officials say.

Still, they also acknowledge the process is in its early stages. They’re also keenly aware of the complexity of both the policy and political interests at stake — the very issues that have bogged down or completely suffocated past efforts to address the long-standing authorizations.

In addition to the 2001 and 2002 war authorizations, there’s also an effort underway to reform the 1970s War Powers Resolution, which requires the executive branch to notify Congress of military action and is supposed to limit the use of US forces without a congressional war authorization, though it’s never successfully been used in that manner.

Sen. Chris Coons, a Delaware Democrat, told reporters Wednesday that Congress was “really at the beginning of this conversation” with the Biden administration.

“Given that we have a President now serving who understands and has respect for the role of the Senate, I think we have an opportunity here to re-examine what had been very thorny issues,” Coons said.

Iraq War vote blowback still reverberates

Kaine has been in this position before. The 2016 Democratic vice presidential nominee pushed the Obama administration to update the 2001 and 2002 war authorizations that were used when the US military sent ground troops to Iraq and Syria to fight ISIS — a group that didn’t exist when the authorizations were originally written.

The Obama administration expressed a willingness to update the authorizations and even sent a draft legislative effort to Capitol Hill. But the appetite for changes, to the extent it had any momentum, had already come to a halt. Administration officials spent little time pushing to move an issue that officials at the time concluded would take a significant amount of political capital — with limited odds of success.

There were technical and policy issues raised about Obama’s effort, but there was also an underlying roadblock that, while largely unspoken, creates perhaps the biggest roadblock at all.

Lawmakers for nearly two decades have been able to skirt one of the most difficult votes that ever comes across their plate: the vote to send US troops to war. The blowback to the 2002 Iraq War vote has served as a cautionary tale to some, and the urgency to reclaim that constitutional authority has been far from universal in the years since.

That has started to shift in palpable ways in recent years, even if an outcome has escaped the grasp of advocates.

During the Trump administration, Congress sought to push back on the executive branch’s war powers, passing a resolution to limit President Donald Trump’s authority to use military force against Iran through the War Powers resolution. Trump vetoed the measure.

Now that Biden is in the White House, Republicans who have worked with Kaine say they’re hopeful that skeptical GOP lawmakers will come on board.

“Just having White House buy-in — that helps move things along quite a bit,” Young told CNN. “To the extent politics ever creeps into foreign policy, I think one might be a little less inclined to support a president of the opposing party going into war, but this is the opposite, so I think commendably President Biden is prepared to constrain these authorities.”

Young said he had confidence in the Iraq War authorization repeal getting through the Senate but was “less optimistic” about Congress tackling a repeal of the 2001 authorization.

‘We may just have a little bit different means’

The House Foreign Affairs Committee hearing this week on congressional war authorizations highlighted both bipartisan consensus on the need to update 20-year-old war authorizations — and the difficult path forward to doing so.

Rep. Mike McCaul, the top Republican on the committee, said he was on board with updating the authorizations. “I think we have the same goal here. We may just have a little bit different means of getting about it,” McCaul said.

But the Texas Republican also expressed his opposition to repealing the 2002 Iraq authorization, in a sign of the difficulty ahead of striking a broad bipartisan consensus. The Trump administration cited the authorization in its 2020 strike on Iranian general Qasem Soleimani, something Republicans have pointed to as reasons to keep it on the books.

“Rushing a standalone repeal of an AUMF used by the last three administrations only two days after beginning this conversation is not a constructive way to consider this important national security authority,” McCaul said.

In the Senate, Foreign Relations Chairman Robert Menendez said he also planned to take up a repeal of the 2002 and 1991 Iraq War authorizations. But the New Jersey Democrat acknowledged that replacing the 2001 authorization was a “tricky” proposition.

Richard Fontaine, the CEO of the Center for a New American Security, said the effort to replace the 2001 war authorization breaks down when it comes to what a resolution would do: liberals say the current powers given to the executive branch are too expansive, but hawks respond that proposed restrictions like limitations on geography and ground troops or setting an expiration date aren’t acceptable.

“I don’t think the Venn diagram overlaps in a place that can get 60 votes in the Senate,” Fontaine said.

Lee, the sponsor of the House bill to repeal the Iraq War authorization, said that bill was “major step” for Congress to regain its authority in war powers. The California Democrat said she’s involved in the effort to tackle the 2001 authorization, too, and has been involved in discussions with lawmakers and the White House.

“It’s more complicated but that doesn’t mean we’re not going to move forward on it,” she said.

Kaine is pointing to September 2021 — the 20-year anniversary of the September 11, 2001, terrorist attack, as a goal to have something moving to replace the two-decade-old war authorization.

“I’d like to try to get something meaningful done by September of 2021 — we should show the American public we’ve learned something in 20 years,” Kaine said.

This story has been updated with a vote in the House Foreign Affairs Committee.