The Revolutionary War and the Civil War ended in Virginia, which was involved, by the 9/11 attack on the Pentagon, in the beginning of today’s war with radical Islam. Now a senator from Virginia is determined that today’s war shall not continue indefinitely without the legitimacy conferred by congressional involvement congruent with the Constitution’s text and history.
Tim Kaine, former Richmond mayor, former Virginia governor and former national chairman of the Democratic Party, represents the distressingly small minority of legislators interested in crafting an authorization for use of military force (AUMF). This is easier vowed than accomplished.
Kaine’s interest in Congress’s role in the making of war quickened in October 2002, when President George W. Bush, on the eve of midterm elections, sought an AUMF regarding Iraq, even though the invasion was not imminent. The University of Virginia’s Miller Center released the report of the National War Powers Commission , co-chaired by former secretaries of state James Baker and Warren Christopher. It recommended a new codification of the allocation of war powers between the president and Congress.
On Sept. 7, President Obama said he was going “on the offensive” against the Islamic State. In August, he had gone beyond the protection of threatened consular staff at Irbil, an emergency presidential responsibility requiring no congressional authorization. When, however, he unilaterally undertook, also in August, military action to protect a dam about 80 miles from Irbil, Congress, with the lassitude of an uninvolved spectator, did not express itself. Instead, it recessed unusually early, seven weeks before the 2014 elections.
Such dereliction of duty, Kaine says, is as unacceptable as pretending that the AUMF of Sept. 18, 2001, suffices to regulate presidential war-making discretion in the current context. Lacking both temporal and geographic limits, it authorized force “against those nations, organizations, or persons” who “planned, authorized, committed, or aided” the 9/11 attacks “or harbored such organizations or persons.” The Islamic State did not exist then and today is a hostile rival to al-Qaeda. Even while the twin towers and Pentagon still smoldered, Congress rightly rejected language authorizing force “to deter and pre-empt any future” terrorism or aggression.
While now claiming to need no authorization beyond that of 2001, Obama suggests an AUMF that would permit military action against the Islamic State and “associated forces,” which would include any group, anywhere, seeking a charisma injection by claiming adherence to the Islamic State.
Because the definitions of today’s enemy and the nature of today’s war are blurry, perhaps any new AUMF must be extremely elastic. Sen. Marco Rubio (R-Fla.) suggests one authorizing “whatever steps are necessary to defeat ISIS. Period.” To at least partially immunize the future from today’s paralyzing ambiguities about the executive’s and legislature’s respective war-making responsibilities, Kaine and Sen. John McCain (R-Ariz.) propose legislation essentially incorporating the National War Powers Commission recommendations, as follows:
Unless Congress declares war or otherwise authorizes any “significant armed conflict” (“lasting more than a week”), it must, within 30 days of the beginning of such a conflict, vote on a joint resolution of approval. This protects presidential power by reversing the presumption of the 1973 War Powers Resolution that inaction by Congress suffices to establish congressional disapproval.
The Kaine-McCain legislation would, however, constrain presidents by institutionalizing consultation: The joint resolution would be proposed by a permanent Joint Congressional Consultative Committee made up of the House speaker and Senate majority leader, the minority leaders of both bodies and the chairs and ranking members of the four most germane committees of both (Armed Services, Foreign Relations, Intelligence and Appropriations).
Demographic and geographic factors have driven Kaine’s interest in foreign and military policies. When he was born in 1958, 1 in 100 Virginians was foreign-born; today, 1 in 9 is. From its south, with the world’s largest naval base (Norfolk), to its north, with Quantico (where Marine Corps officers train) and the Pentagon and associated military contractors, Virginia is, he says, “the most militarily connected state.”
As Obama’s war strategy collapses, he should welcome company during his stumble through the gathering darkness. As always, however, his arrogance precludes collaboration with Congress. And Congress, knowing that governing involves choosing, which always involves making someone unhappy, is happy to leave governing to him.
When Kaine began running for the Senate, he says he was warned that he would join “the unhappiness caucus” composed of senators who previously had experienced the pleasure of exercising executive power. He is, however, finding satisfaction, of sorts, reminding the national legislature that the fault is not in the stars but in itself that, regarding the most solemn business, it is an underling.
