National Security Is Stronger When Congress Is Involved. Here’s How We Get Back to the Table.

July 20, 2021
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In early 2020, former Vice President Mike Pence made a curious argument on social media: According to Pence, Iran’s top general Qassem Soleimani knew about al-Qaeda’s plans for the Sept. 11 attacks beforehand and worked to facilitate them. For those of us who have watched the executive branch, administration after administration, expand its authority to make war without congressional authorization, the intent was clear. Pence was trying to tie Iran to the 2001 attacks in order to justify starting a new war with Iran without coming to Congress for authorization first.

This phenomenon, of course, is not new. The entire Vietnam War was fought without an explicit declaration of war by Congress. But today, when the definition of enemies and the parameters of war are harder to define than ever, the pace of executive warmaking has become dizzying. In 2001, Congress passed an Authorization for Use of Military Force against those responsible for the Sept. 11 attacks. Since then, the executive branch has deployed combat-equipped troops to more than 20 countries for counter-terrorism missions and has stretched the logic of that authorization to justify operations in at least seven countries, including Syria, Somalia, and Niger. In not a single one of those deployments was there a comprehensive public debate about the wisdom of the decision.

 

 

Other major national security decisions are more frequently being made without public debate. Multi-billion dollar arms sales to oppressive regimes go forward without almost any input from voters. In 2017, President Donald Trump posed for a photo-op with the Saudi crown prince to tout $110 billion in arms sales to the country, even as the Saudi air force was pummeling civilian targets in Yemen. Before that, President Barack Obama presided over a massive scale-up of arms sales to Gulf countries unnerved by the signing of the Joint Comprehensive Plan of Action and Iran’s regional aggression, without almost any up or down votes in Congress on the sales.

Presidents declare vague “national emergencies” more frequently than ever — giving the executive branch massive, unchecked power. There are at least 123 statutory powers that become available to the president when he declares a national emergency, including a wide-ranging power to impose economic sanctions. Today, there are no fewer than 39 ongoing national “emergencies,” including those declared in connection with the war in Syria (since 2004); instability in Iraq (since 2003); Russian election meddling, cyberattacks, and aggression against Ukraine; charcoal exports from Somalia; and the use of child soldiers in the Central African Republic.

All of this expanding executive power should worry Americans. It certainly would have worried our founders. Our nation’s fathers knew that decisions about war and peace, and foreign entanglements, came with such grave consequences that public input was required. That is why the Constitution gave only Congress the power to send American troops to war, and that is why there’s a long list of congressional national security powers well before the executive branch ever gets its first mention in our founding document. The writers of the Constitution knew that it was dangerous to give such sweeping authorities to one person.

While both Democratic and Republican presidents have shared the task of expanding presidential emergency powers, the fault for congressional marginalization lies with our body, too. The era of permanent war and non-state antagonists makes declaring war more difficult and nuanced. Avoiding oversight of arms sales is convenient, absolving Congress of backbreaking work and allowing the legislative branch to simply armchair quarterback and provide 20/20 hindsight criticism when deals go wrong. Congress has done a pretty good job of making itself increasingly irrelevant over the years as it regards national security choices.

Congress should start clawing back its constitutional national security prerogatives. This task should start with updating the antiquated statutes that make real the powers given to the legislative branch by the Constitution.

The National Security Powers Act, the first modern, comprehensive outline of Congress’s national security powers, is the vehicle by which Congress can rein in this nearly blank check authority. Over the past year, Sen. Mike Lee, Sen. Bernie Sanders, and I have met with advocates, experts, and scholars to craft a sweeping, but achievable, proposal to reset the foreign policy balance between the Congress and the executive branch.

On warmaking, the bill would require that any authorization for the use of force abroad be bound by specific objectives and geographic limits and be re-evaluated after two years. Congress could renew the authorization, but only by a vote of both chambers. If there’s a strong case to be made for that war to continue beyond two years, the administration should have to make it to the American public, and Congress should vote on the matter. No more endless wars. This bill replaces the current War Powers Act, closing loopholes long used by the president to circumvent Congress while also forcing members of Congress to stop abdicating its duties and take the tough votes on matters of war and peace.

With respect to arms sales, current law only applies to the biggest weapons transfers and requires Congress to pass a resolution of disapproval through both houses in just 30 days. That’s too limited and cumbersome. It should come as no surprise that Congress has never successfully stopped an arms sale through this process. But the National Security Powers Act would flip the script and require Congress to take a limited number of affirmative votes before the proposed sales could proceed. And we wouldn’t need to vote on every sale, just those that pose the highest risks, as in cases where the administration proposes to sell the most lethal or technologically advanced weapons to countries other than our NATO allies, Israel, and key defense partners in the Asia-Pacific region.

Finally, the National Security Powers Act would require that national emergencies be authorized by Congress after 30 days, and that such declarations — and the authorities they temporarily confer on the president — would have to be renewed annually (with a five-year total limit on states of emergency). To prevent another fake emergency being used to justify taking funds from our troops to construct a wall on the border with Mexico, the National Security Powers Act would also repeal Title III of the National Emergencies Act.

The commander in chief should always have the right to defend the United States and our armed forces under immediate threat of attack. But the country makes better national security decisions as a whole when Congress has a seat at the table. American democracy is stronger for it. President Joe Biden, perhaps more than any president in modern history, understands this. After all, it was Biden who stood up in 2007, after President George W. Bush proposed bombing Iran, and declared: “Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”

Congress should reform a system that gives us endless wars, unlimited arms sales, and ill-advised trade wars that leave America weaker in the world. Members of Congress owe it to the American people to ensure that these consequential decisions to bring American power to bear are made carefully, thoughtfully, and sparingly. Bold legislation like the National Security Powers Act is long overdue.

 

 

Sen. Chris Murphy (D-Conn.) is a member of the U.S. Senate Foreign Relations Committee.

Image: U.S. Marine Corps (Photo by Cpl. Jacob Yost)