When it comes to bombing Yemen, Congress seems more interested in being consulted than in the substance of that consultation. When the Biden administration began striking Houthi positions earlier this year, members of Congress from across the ideological spectrum took to social media to decry these strikes — but their criticism focused almost entirely on the fact that no-one asked for their permission first. “President Biden must come to Congress and ask us to authorize this act of war,” tweeted Rep. Anna Paulina Luna (R-FL). “The White House must work with Congress before continuing these airstrikes in Yemen,” added Rep. Mark Pocan (D-WI).
These members are exactly right that Congress is the branch of government tasked by the Constitution with approving warfare, not the president. The problem is that this is only the latest example of Congress focusing on the wrong question. The debate should not be, “Has this use of force been properly authorized?” The missing conversation is: “Should these bombings even be happening?”
Of course, many of these same members see the procedural and substantive fights as one and the same. They believe the best way to force a debate and potentially restrain the unjust use of force is to insist that presidents come to Congress for authorization. But there is still a risk in focusing too much on process at the expense of substance. At worst, this could lead Congress to offer a resolution for the use of force in Yemen as an ex post facto authorization for what the administration is already doing. Indeed, Sen. Chris Murphy indicated in a recent hearing that he would like to do exactly that, saying, “an authorization is important to legalize the existing operations but also to guard against an unauthorized mission creep.”
But congressional war powers don’t begin and end with authorization processes. Members of Congress who oppose the executive’s use of force should say so and utilize their considerable platforms to critically move the debate forward. All members should deeply interrogate each case for war by holding hearings, grilling administration witnesses, and demanding evidence for underlying claims. And when the executive is unable to convincingly make the case for the use of force on the merits, Congress should have the political courage to stop them from proceeding by denying or revoking authorization and funding.
The Limits of Retroactive Authorization
Consider the impact of a retroactive authorization along the lines of what Murphy suggested. Congress could well use such an authorization process to vigorously debate this use of force on the merits. Perhaps in that process they would note that President Joe Biden himself has said the strikes are ineffective. Maybe they would use this opportunity to point out that the Houthi attacks are clearly connected to the crisis in Gaza, as evidenced by the Houthis’ own statements and the fact that they backed away from their attacks during the short ceasefire in November. Perhaps this would lead Congress to pass a strictly limited authorization that gives the administration tight barriers, or deny authorization altogether. Maybe all these things would happen! But even in this best-case scenario, such an approach would fall short.
For one, textual limits alone are insufficient to restrain the executive. The original post-9/11 “War on Terror” authorization explicitly targets those involved with the Sept. 11 attacks. Yet successive administrations have simply interpreted it to also authorize force against “associated forces.” This term is not present in the text yet has been invoked to justify force against groups that did not even exist at the time of those attacks in the more than two decades since. Similarly, the 2002 Iraq War authorization was quite obviously specifically intended to target the Saddam Hussein regime. Yet it has still come in handy 20 years later for presidents to cite when targeting Iran-backed militias in Iraq and Syria. And, of course, presidents seem to find enormous inherent authority in their own Article II commander-in-chief constitutional powers if statutory authority appears incomplete. So textual limits could be useful, but only if someone enforces them.
Additionally, a congressional authorization process will not necessarily have the effect of restraining the executive’s use of force. It certainly could, and in fact there is some precedent. Perhaps the best example is from 2013, when the Obama administration indicated it planned to bomb Bashar al Assad’s government in Syria but then backtracked after Congress insisted on voting first, and it became clear that the vote may fail amidst heavy constituent opposition.
But there is also the counterexample of the 2003 Iraq War, in which Congress had every opportunity to investigate the facts and debate the merits of the invasion before it took place. Even amidst a flimsy war case from the Bush administration and a massive swell of grassroots anti-war pressure, Congress easily passed an authorization. And when the Obama administration requested authorization from Congress for its counter-Islamic State campaign that enjoyed broad bipartisan support but was clearly not contemplated by existing authorizations, Congress found itself unable to agree on the details and declined to engage. This did not result in any pause in the campaign — the administration simply found a way to argue that its existing authorities were sufficient after all.
Finally, it is also entirely possible that hawks in the administration or Congress elect to place an authorization for military force on the congressional floor that includes no meaningful limits on the Yemen bombing campaign and risks paving the way for another futile and costly U.S. war in the region. Unless the same members calling for an authorization have also built a coalition big enough to vote down a bad authorization, such a result would at best reduce the legislature’s war powers role to a mere rubber stamp for what the administration has already decided to do of its own volition. At worst, it would entrench and empower the very thing Congress seeks to restrain.
Post-9/11 Precedent
Nowhere is this dynamic more clear than in the seemingly endless authorization debate over the seemingly endless “Global War on Terror.” Although it has taken on other names and largely faded from public attention, sprawling U.S. military operations in the name of countering terrorism continue in dozens of countries more than two decades after the post-9/11 invasions of Iraq and Afghanistan. There are only two congressional authorizations underpinning these operations in part or in whole: the resolution passed in 2002 authorizing force against Saddam’s Iraq, and the 60-word green light to use force against those responsible for Sept. 11, 2001, passed just days after those attacks.
These aging authorizations are clearly inappropriate to the current moment and have required a healthy mix of creative lawyering and delusion to argue otherwise over the years. On a bipartisan basis, a long succession of presidents, members of Congress, and civil society advocates have seemed to agree on this fact for more than a decade. Hearings have been held, legislation has been introduced, and ink has been spilled on the op-ed pages. As recently as last year, a bipartisan working group in Congress committed to finally addressing the issue.
But take careful note of where the energy is focused in these efforts. The internal wrangling appears to be entirely over questions like which armed groups the authorization will target, whether there should be any geographic boundaries on the use of force, if ground troops should get involved, and when the authorization should sunset, if ever. These are the exact same debate contours that have dragged on for more than a decade. Various members of Congress have proposed updated authorizations that get mired in this same debate spiral before ultimately going nowhere.
As one of the lead negotiators said of the working groups’ efforts, “This isn’t something that is being raised by anti-war or anti-use of military force individuals. This is something that is a constitutional issue that many of us have felt has been abused for a long time.” This is an honest admission: The entire conversation occurring in the Washington policy space seeks to ensure that ongoing global counterterrorism efforts are supported with the proper paperwork, as opposed to tackling the difficult question of whether such operations should even still be occurring.
It is in fact astounding just how absent that debate is in the halls of Congress. After more than 20 years, more than $8 trillion, and hundreds of thousands if not millions of dead bodies, armed groups engaging in terrorism have only proliferated and spread. “Counter-terrorism” has helped that happen. The destabilization and unrest that has resulted from U.S. military operations in the name of countering terrorism has fueled displacement, human rights abuses, and destruction. The fundamental theories underpinning the War on Terror have been proven incorrect over and over. It is time to recognize this reality and end the charade, not debate the contours of how to reauthorize and entrench it.
Conclusion
In fairness, there are several members of Congress who are trying to push the debate forward. For example, Sen. Tim Kaine has stated plainly that the Houthi violence is connected to Gaza and there is no reason to believe that bombings, rather than addressing and de-escalating the situation in Gaza, will deter them. Rep. Barbara Lee voted alone against the post-9/11 authorization in the first place, and has been working tirelessly to repeal it and end the resultant “endless wars” since then.
But these members should not be in the minority. The entire reason that Congress, and not the president, holds such fearsome constitutional responsibilities over warmaking is not simply to check a procedural box but because it is supposed to be difficult to resort to the use of force. The task is not to give the administration whatever they ask for, or scramble to backfill authorization for what they are already doing. Rather, it is to critically interrogate the consequences of that force and determine if it is the right course of action. Taking up political space and legislative time to focus on process without substance crowds out the core essential debates that Congress should actually be conducting.
Quite obviously, it is better as a matter of constitutional compliance and democracy itself for Congress and the public to get a say in matters of warfare. But doing the constitutional minimum is not enough to ensure good policy or restrain the use of force. Thus, it is far past time for Congress to go beyond simply denouncing unauthorized wars. What is needed is a truly co-equal branch of government that makes it harder to unleash the destructive power of the military without robust debate. Elected leaders should go beyond asking to be included in these decisions, and instead start opposing failed strategies on the merits utilizing every tool in their legislative toolbox.
Elizabeth Beavers is an adjunct law professor and foreign policy writer based in Washington, D.C.
Image: DoD photo by Chad J. McNeeley
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