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The Lawfare Podcast
Lawfare Archive: The Past, Present, and Future of War Powers with Brian Finucane and Matt Waxman
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I'm Isabella Royo, intern at Lawfare, with an episode from the Lawfare archive from September 12, 2024. On September 2, the US Navy struck and sank a vessel from Venezuela, which President Trump alleged was carrying 11 members of the Trende Aragua gang attempting to smuggle drugs into the United States. This week, the US Military struck a second Venezuelan vote. The administration has justified the attacks as self defense and pointed to the danger that drug trafficking poses to Americans. This week, Senator Adam Schiff announced that he will draft a war powers resolution to block what he termed extrajudicial killings and to reassert Congress's power over declaring war. For today's archive, I picked an episode from September 12, 2024, in which Lawfare's Tyler McBrien and Matt Gluck sit down with Brian Finucan, a senior advisor for the US Program at the International Crisis Group, and Matt Waxman, a professor at Columbia Law School, to discuss the Crisis Group's report entitled bending the guardrails, US war powers after October 7th. They discussed the history of interbranch tensions over war powers, how the Biden administration had justified certain operations in the Middle east without new legislation of authority, the feasibility of war powers, legal reform, and more.
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E
It's the Lawfare podcast. I'm Tyler McBrien, managing editor of Lawfair, with my co host Matt Gluck, a research fellow at lawfair, in conversation with Brian Finucan, senior senior advisor at the Crisis Group and Matthew Waxman, professor of Law at Columbia University.
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A
There may be space potentially as part of the NDAA process to tighten up, you know, the War Powers Resolution around the margins, including by defining some of the key terms such as hostilities or introduction of US Armed forces and hostilities to hopefully close some loopholes that this administration and administrations before have used to, you know, avoid the 60 day clock.
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E
Today we're talking about the Crisis Group's new report, bending the guardrails, US war powers after October 7, and the possible futures of war powers reform after Gaza. So, Brian, I want to start with you to first just get everyone on the same page about the report that Crisis Group just released. So if you could walk us through a bit of the origin of the report. How did it come to be and what, what were you examining as you researched and wrote it with your colleagues?
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F
Sure.
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A
Pleasure to join you all today. So following the horrific attacks of October 7, the Biden administration responded by deploying US armed forces to the Middle east to deter further attacks on Israel by the so called Axis of Resistance, primarily Iran, but also Hezbollah. But in addition to deploying assets to the eastern Mediterranean, US Forces in various places in the Middle east soon became involved directly in hostilities with various members of the Axis of Resistance. So in Iraq and Syria, attacks on US Forces had resumed after a month long lull and US Forces were soon involved in hostilities with the Houthis in the Red Sea. And these hostilities continue to this day. And all this has taken place without congressional authorization. The White House has not gone to Congress to seek authority for engaging in these new and renewed hostilities. And so our report examines both the factual developments, what's happened in terms of U.S. military involvement in the Middle east, particularly hostilities, not just the deployments, but the actual fighting since October and the legal rationales that the White House, the Biden administration have deployed to justify these operations in lieu of obtaining fresh congressional authorization. And we've conducted extensive research on this, interviewing a number of staff upon Capitol Hill, people within the administration to try to piece together the legal theories that the Biden administration is relying upon to conduct these conflicts. And I say we piece together because the administration has not been terribly forthcoming about publicizing its legal theories for waging these conflicts. And then finally we have some recommendations for reforms and also immediate steps that the Biden administration itself should take, including to press for a ceasefire in Gaza to exert further pressure to that end, not only for the obvious reasons of bringing that terrible conflict to a close, but also in the hopes that it will calm tensions in the region, including those the conflicts involving U.S. forces.
- [06:51]
E
It's really helpful start and just as a quick follow up, a lot of what you're describing in the report and just now is a continuation of dynamics that far precede the Biden administration and precede the current conflict in the Middle East. So I want to also just get on the table, what's new in this report? What are you saying that's new? What are new findings that you're trying to express through the release of the report?
- [07:15]
A
That's absolutely right. So there are both sort of long term chronic issues and shorter term acute issues that have resurfaced since October 7th. So US Armed Forces have been deployed in Iraq and Syria since 2014 when they went back in initially under the Obama administration to fight isis. And then in recent years they've come under attack, sort of the ISIS conflict has subsided to some degree, come under attack by Iran backed groups in both countries. Since October these groups have operated under the banner of the Islamic Resistance. And so before October 7, there was a months long truce that had been observed between US Forces and these Rambek groups. But that fell apart and these groups began taking actions, retaliatory actions against US Forces in response to the conflict in Gaza. Similarly, the Houthis, you know, took over much of Yemen in 2014, 2015 and there was a long running conflict with the Saudi backed military coalition during the Obama and Trump administrations. But there really had not been direct conflict with the United States apart from one strike at the end of the Obama administration. And so the Houthis and expressing solidarity with Hamas began launching attacks against Israel in October and then when they were unable to hit Israel against commercial shipping in the Red Sea and Gulf of with alleged ties to Israel. And so the US Military intervened to try to stop those attacks both against Israel and both and against commercial shipping. But again, there's a long term chronic problem posed by the Houthis. Then there's the more immediate problem of the ongoing attacks. Similarly, there's ongoing issues of attacks on US Forces in Iraq and Syria and the deployments there, and then the near term issue of, you know, how do we get attacks for the immediate future to cease.
- [09:12]
G
Matt, you said that you thought the report was an outstanding document but that you disagreed with some of the conclusions and recommendations in the report. Could you broadly lay out your disagreement and we'll get into the details later on?
- [09:30]
F
Yeah. So let me commend the crisis group for the report. I think the quality of the report is excellent. Whether one agrees take or not, it's extremely well researched, very well done. I'd say that I agree with it on some basic points and disagree with it on others. Just to run through them quickly, you know, first, I agree with the report and I don't want to put words into Brian's mouth so he can correct me if I'm mischaracterizing anything here. But I agree with the report on its originalist reading of our constitutional system, which meant originally that Congress would for the large part control whether or not the United States went to war or entered into armed conflicts. I think that is true as a matter of originalism. I disagree with those who say that the current state of affairs in which the President can and often does act unilaterally in the use of military force, I disagree with those who say that that's consistent with the original constitutional meaning. I think I differ with the report in that I think the current state of affairs is more constitutionally defensible and especially in light of historical practice and many other changes in American military power over the last 230plus years. I also agree with the report that the main kind of framework statute to regulate the use of force, the War Powers Resolution dating back to 1973, has really been whittled away. It's been watered down, it's not enforceable. But I do think it still plays some significant constraining role. And finally, I agree with the report in calling for a stronger role for Congress in matters of war and peace. I'm not a presidential supremacist who thinks that legislative checks on the President are dangerously unconstitutional. But I don't think new framework statutes are the way to go. I think Congress can make better use of its other standing oversight powers, and we need to be realistic about what Congress, the present Congress and sort of Congress more generally can accomplish. Should there be some reform? Yes. But I think I have some different diagnoses and therefore some different prescriptions from the report.
- [12:18]
E
Great. And we'll definitely dig into all of Those with both of you, Matt and Brian. But first, I want to refer back to kind of the beginning of my earlier question about how this is a dynamic that has played out over decades. In the report, it charts very well this history of reform and congressional pushback and expansion of presidential authority. So that authority in the war powers context has expanded, as you both know, greatly over the last several decades. But there are also these moments of reform. So Matt briefly touched on the 1973 War Powers Resolution. Brian, what are some of those other moments of pushback that you talk about in the report?
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A
Well, we have seen moments of bipartisan pushback to uses of force by the White House or other involvement of U.S. forces and hostilities or fueling for hostilities. This was particularly true during the Trump administration. There were efforts to pass a resolution under the War Powers Resolution which would require cessation of U.S. support for the Saudi led military coalition in Yemen. That was vetoed by President Trump. And following the strike on Iranian General Qassem Soleimani in Baghdad, Senator Tim Kaine introduced a joint resolution which would have required the removal of U.S. forces from a conflict with Iran and also made clear that there was no existing statutory authority for such a conflict. That got bipartisan support in both houses of Congress, but it was again vetoed by President Trump. And so there have been these periodic pushbacks by Congress in particular instances. We haven't seen another successful legislative effort since 1973, akin to the War Powers Resolution. There have been efforts in recent Congresses to update that to overhaul the resolution. And they have had bipartisan support and been reduced in both houses, but they haven't gotten much traction. These are ambitious and sort of long term projects. But I do think it's worth sort of pointing out the dynamic that came up again and again in our research on this report and other conversations we've had over the years, both with folks in administration and on Hill, which is how much the dynamics have changed since, say, the Iraq war and since that members of Congress really do not want to take hard votes on these issues in large part because of the disciplining effect of the way that the 2008 Democratic primary played out, where there was a perception that Barack Obama triumphed over Hillary Clinton because of their respective positions on the Iraq war. And so this carries through with how the Obama administration handled the situation in Syria, where it and eventually it took that to Congress in 2013, whether it was going to do retaliatory strikes in response to the use of chemical weapons and they were not going to get the votes and so ultimately they took another route and it played out again with respect to the counter ISIS campaign, where the Obama administration did not initially go to Congress. And I've heard that Harry Reid, the Senate Majority Leader at the time, told the White House, please don't bring this forward for a vote because this is going to for the midterm elections, because our members don't want to have to vote on this. And I think that we continue to see that dynamic play out today where by and large, many members of Congress do not want to have to take a vote on these matters of war and peace, do not want to have take political ownership of it.
- [15:56]
G
Matt, We've mentioned this 1973 law, the War Powers Resolution, which is the primary statutory constraining authority that Congress has to restrict the President's use of military force abroad. Could you outline what that law does and what power it gives Congress over the President?
- [16:17]
F
Yeah. So let me just sort of lay it out very briefly and then we can drill into the details as necessary. But at the tail end of the Vietnam War in 1973, Congress passes the War Powers Resolution, or the War Powers act as it was sometimes known, especially at the time. And it did a few things when the President sent military forces into hostilities or into situations in which hostilities were imminent that would trigger a few requirements. One was a reporting and consultation requirement with Congress. But perhaps the meatier one was it would trigger the so called 60 day clock. You'd have a 60 day clock after which, if Congress had not affirmatively authorized a continuation of that military intervention, the President would be obliged to withdraw those forces. So that was passed in 1973. It's still on the books today. But as the crisis Group's report does an excellent job of outlining, that statutory framework has really been whittled away, watered down in a number of ways. The various have been interpreted by the executive branch very loosely. What are hostilities? For example, what ways can Congress implicitly authorize military operations in order to sort of satisfy that 60 day time limit? When might it be possible to restart that 60 day clock and say, well, no, this isn't really one long extended intervention. This is a bunch of short interventions. So a number of ways in which the Executive branch has interpreted the terms very loosely. Congress hasn't really done a lot to push back on its own to enforce it. And courts have stayed out of the fray. Courts have refused to weigh in and enforce the law in any serious way. So it's been watered down really by all three branches. We may come back to Talk about why I actually do still think it plays some important role. But I do want to make a point, sort of responding to Brian's remarks, which is to say, in some ways this should be the most propitious moment for war powers reform in 50 years, since the, since the end of Vietnam, since the War Powers Resolution. You've had the disastrous 2003 Iraq War and the endless global war on terrorism. You have widespread anxiety from both the far left and the far right about overextended U.S. military commitments. You have weakened trust in the presidency on both sides of the aisle. For all these reasons, this seems like it should be a moment like the end of the Vietnam War, when major reform is possible. But here's the problem. Congress is also at its most fractious and disabled in generations. Right. I mean, Congress can't keep the lights on in government. So if it can't keep the lights on, it's not going to get reform done. War powers reform done, and it's certainly not going to get it done.
- [19:59]
G
Well, Brian, one of the services that your report provides is to describe the development of war powers reporting over time. Could you walk us through some of the key shifts in presidential war powers reporting under the War Powers Resolution? In particular, it might be useful to discuss The Obama administration's 2014 reporting of operations against the Islamic State, for example, and what that represented about war powers reporting more broadly.
- [20:33]
A
Sure. Now said, I want to direct people's attention to a great initiative spearheaded by my friend and colleague Tess Bridgman at nyu, the War Powers Reporting Project, which catalogs all of the 48 hour war powers reports that are publicly available. So if folks want to refer back to various documents we'll discuss in this conversation, I point them to that. So one of the requirements under the War Powers Resolution is that when US Armed forces are deployed, equipped for combat, which is understood by the executive branch to mean with crew served weapons like heavier machine guns or mortars, or introduced in hostilities, or as Matt indicated, situations where imminent hostilities are clearly indicated by the circumstances, then a report to Congress is necessary within 48 hours. And when the report pertains to hostilities or imminent hostilities, that then starts the 60 day clock rolling. And so these reports provide both a transparency, information transmitting function to Congress and the public, but also, I think more significantly, start the theory, at least start the clock ticking for either removal of US Forces from hostilities or imminent hostilities or Congress need to authorize them. And so what played out in 2014 is ISIS was on the march across northern Iraq. It had besieged Mount Sinjar and was perpetrating massacres against the Yazidis, threatening to exterminate the people on Mount Sinjar, threatening Erbil, the US Consulate there, and threatening to march on to Baghdad and imperil the embassy there and enormous city. And so the Obama administration, after considerable deliberation, both redeployed U.S. forces to Iraq following the 2011 withdrawal and then initiated airstrikes, first to fend off ISIS around Sinjar, but then in other areas in northern Iraq. And it started this in the late summer of 2014. And initially it relied on Article 2 of the Constitution, solely the President's authority as Commander in Chief. And so it filed a series of reports in connection with these actions, engaging in the sort of what you might term salami slicing practice that Matt referred to earlier, where you treat a series of actions as discrete rather than as part of an ongoing campaign or ongoing hostilities. But the Obama administration came up, was starting to come up against the 60 day deadline, and given the frequency and continuity of these strikes against isis, recognized that it was not going to be able to continue pretending that these were discrete actions and it needed some other theory for continuing the campaign against isis. And as I indicated earlier, going to Congress was not an attractive option, including because of the looming midterm election and because of the issues that the administration run into in 2013 with contemplated military action in Syria. And so rather than going to Congress or discontinuing operations, the Obama administration got around the deadline by declaring that actually the war authorizations for the war on terror, the 2001AMF, and for the Iraq war, the 2002 Iraq AMF, they actually provide authority to fight ISIS. And so this is a prior practice by the executive branch of repurposing old war authorizations to enable a new conflict. And that's something we see playing out today in the sort of post 10-7- Conflict that the White House is waging in the Middle East.
- [24:17]
E
Brian, a moment ago you mentioned the reason of political pressure, for example, electoral pressure for one motivation of not seeking authorization from Congress, although you mentioned earlier as well that, you know, a lot of this reasoning is done out of the public eye. What are some other reasons that the Biden administration wouldn't seek authorization to begin with? You know what motivates the, even the move to skirt some of the requirements or not seek authorization and go through other legal avenues in terms of the current conflict?
- [24:48]
A
So President Biden, when he was campaigning, he promised to end forever wars after the US withdrawal from Afghanistan in 2021. President Biden gives his speech at the UN General assembly proclaiming that the country was no longer at war. And that's been a reoccurring talking point. So going into an election year, you can imagine it would be pretty unattractive for the President to then go to Congress and more formally own a new war through an authorization for the use of military force. I think the Biden administration, based on my conversations and public statements that they've made, also considered seeking such authorization as potentially escalatory. They did not seek out this conflict. You know, they deployed additional forces to the Middle east to deter conflict that was not completely successful. But they want these hostilities in Iraq and Syria. They want these hostilities with the Houthis to come to a close. They don't want them to drag on indefinitely. And they don't. They're wary of the signal that seeking a new war authorization would send, and they're frankly concerned about what would come out of it. They don't want some expansive new war authorization that might result from congressional action. I mean, I think it's particularly more of a concern closer to October than it is now. But there's substantial uncertainty given the range of views in Congress about what an authorization should look like. So on the one hand, you have members who don't want taking hard votes, members who are happy to dodge responsibility, but you do have hawks who might be happy to enact an authorization use of military force against Iran. Lindsey Graham just introduced such a measure in recent weeks or two. Such measures actually. And so I think for all those reasons, the administration actually was wary of going to Congress. And I think they continue to hope that, as evidenced by Blinken's engagement and peace negotiations right now, they continue to hope that there will be a ceasefire that calms us all down and renders this entire discussion moot.
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- [28:43]
E
Matt, did you have anything to add there? A dissenting opinion? Any other reasons you might throw in the hat there?
- [28:49]
F
One point that I do want to echo because I think it's an important one that's buried in the report. I don't mean buried in an attempt to cover it up, I just mean fairly small point in the report, but I think is one of great consequence is something that Brian just mentioned, which is the possibility that authorizations for the use of military force in certain moments could be extremely escalatory. Right. Imagine, for example, across Taiwan Straits crisis. On the one hand, one might say, well, to the extent the President's going to consider the use of military force to protect Taiwan, the appropriate thing to do would be to go to Congress in advance and get some authorization from Congress. That might be a disastrously terrible idea at that moment if one of the things you're trying to do is de escalate. So I don't think it's always so easy to figure out how to square what we might see as the sort of most appropriate constitutional path with strategic necessity. The other point that I would just make is that I read the politics of the current crisis in the Middle east as one of general congressional support for strong action by the administration to protect American interests in the region. I think Brian has highlighted a number of reasons why it's hard nevertheless to get Congress to agree on any particular force authorization formula. Right? Some are going to think it's too hot. Some are going to think it's too cold. Some are going to want to dodge a vote altogether. Some are going to want to avoid giving the President or the other side a win. It can be very difficult, even if there is support for policy, to get Congress to take the necessary procedural action and rally around a particular text in a way that you can pass a formal authorization. But to me, one of the important features of the current crisis, and it gets to a sort of a broader argument I'd want to make, is that Congress actually does, I think, constrain the President quite a bit when it comes to the use of military force. That I think there's quite a lot of empirical support for the idea that presidents shy away from using military force when they don't have Congress's backing. Not necessarily, and often not in the form of a formal authorization. But presidents are quite constrained from using military force. If they do, we don't see Congress as backing them up.
- [31:57]
G
Matt, could you walk us through some of the ways in which you think Congress constrains the president? You catalog them in a great article in the Yale Law Journal that listeners should read perhaps alongside the report. Could you walk us through some of those and also perhaps some of the historical examples when you believe that Congress perhaps has constrained the President either before the outbreak of military conflict, but also importantly, as you describe, during military conflict?
- [32:27]
F
Sure, yeah. So, you know, it's often said that once the president intervenes militarily, Congress is kind of completely disabled from doing much about it because it's not going to want to take politically costly action of kind of crossing, crossing the President while troops are engaged. I think that's true to some extent, but vastly overstates the the problem. For one thing, Congress does sometimes step in when it disagrees with the President's military action. After, you know, if you go back to the 1980s, after Reagan intervened in Lebanon, Congress restricted the President from expanding the mission scope, forced a deadline on withdrawing those forces during the Somalia intervention In the early 1990s, Congress legislated an end to those operations in the global war on terror. As Brian and the report explain, you have this kind of perpetual, endless AUMF dating back to 2001. But Congress has taken action along the way to constrain the way the President does wage that war. I served in the George W. Bush administration when Congress outlawed very aggressive interrogation techniques. That was at the time something that the administration argued was a critical tool in the way it was conducting the global war on terror. So sometimes Congress does directly come in during the course of military operations and impose some constraints, and presidents bake into their calculations at the front end that possibility, and that can constrain them. But Congress's will and the constraints that it imposes are felt in many, many other, much less visible ways than formal legislation. There's quite a sizable body of political science Scholarship showing that congressional politics weigh substantially in presidential decision making on any use of force. Congress can influence the President's use of military force not only through legislation and appropriations, but also through hearings, public appeals. And one of the reasons why the War Powers Resolution I think is part of that checking, even if it's been watered down, even if it's not enforceable, is that congressional opponents of military action can still use that 60 day clock and special legislative procedures in the act for some political effect, that it's easier for them to mount opposition to military interventions using the War Powers Resolution than having to do it from scratch. Now it's true that there are not a lot of cases in which Congress directly comes in and mandates legislatively an end to wars that it or conflicts that it disapproves of. But that can also be explained by the fact that Congress's will is actually quite constraining at the front end. Presidents don't intervene in many cases where Congress doesn't generally approve of hardlines military action. And the last point I would just make here is a really a methodological one, that if we're studying only military interventions and the conflicts that actually occurred, we're overlooking a lot of evidence of the ways in which Congress checks presidential military actions and military actions that didn't even occur. So I think there is quite a lot of evidence that Congress wields political checks, even if not formal legislative checks when it comes to the President's use of force. It's true that even if Congress acts as a political check on the President, that's not the same as requiring an affirmative, an affirmative formal act by Congress. My point is not to equate those two things, but just to say that the President is more checked by Congress than often supposed.
- [37:06]
E
Brian, I definitely want to get your reaction to a lot of what Matt put on the table. And I wonder if maybe by way of rebuttal or agreement, what you think the current conflict reveals about some of these constraining mechanisms that Matt put out there. There's a great section in the report which is called Lawyering Conflict, the Biden team's Approach, where you lay out some of the arguments that the Biden administration uses to justify its post October 7th operations. So that's a long way of saying I would love your reaction to what Matt just put out there.
- [37:40]
A
Well, I think at a minimum, a variety of political calculations have resulted in the Biden administration keeping the conflicts the US has waged since October 7th under a certain threshold. So you have seen regular airstrikes against the Houthis, interceptions of missiles and drones launched at commercial vessels. But the Biden administration is not executing Operation Yemeni Freedom and launched some large scale ground invasion there. Both because there likely not be much support in Congress for that, but also because the until recently President Biden was running for reelection and this is not something that he wanted to own going into an election. Similarly, the US was fairly restrained in responding to attacks by Iran backed groups in Iraq and Syria. And it was not a direct tit for tat for every rocket launch against U.S. forces in those countries. The U.S. biden administration relied heavily on diplomacy and trying to pressure the Iraqi government to do more to head off those attacks and also messaging to Tehran. So I think political calculations definitely play a major role here and a constraining role. But I think one of the problems that we try to highlight in the report and one of the consequences of this creative lawyering, narrow interpretations of the War Powers Resolution or repurposing of old war authorizations is it enables the administration to get around the 60 day deadline posted the War Powers Resolution and therefore the administration and the administration combined with Congress don't have to undertake deliberations or debate that would otherwise be prompted by a hard deadline. And I think that's relevant here because even the administration going back to January, for example, President Biden acknowledged that strikes against the Houthis were not working. And we recently had an interview with the naval commander for CENTCOM talking about the limitations on US military action against the Houthis. It was more of a shock absorber, wasn't going to solve the problem and they really need a diplomatic solution. And so if you would have, if the War Powers Resolution actually played this forcing function of forcing greater deliberation within the administration and then potentially between the administration and Congress, maybe the administration would have reevaluated the use of military force, you know, as a tool and, or as a tool for this long. And maybe they would have pressed, for example, harder on trying to get a ceasefire earlier on that might have ended these hostilities to begin with.
- [40:18]
G
Matt, do you want to jump in there?
- [40:20]
F
Yeah. Because you know, one point I just want to clarify is that I didn't mean to suggest before, I don't want to be heard as saying everything's totally fine and that there isn't any need, need for reform or there isn't any need for stronger checks. I think the better reform agenda and much of what I'm going to say here is consistent with some of the points made in the crisis group's reports is that Congress really needs to up its oversight game. Congress has a lot of powers at its disposal to conduct hearings, whether it's open hearings or closed hearings. There's a lot that individual members, especially committee chairs, can do with their gavels to try to force the kind of deliberation that Brian's talking about. So I do want to just emphasize that there is reform that's necessary and that that reform, though, need not take the form of new legislation. It doesn't necessarily take the form of force authorizations, force resolutions. There are other ways in which Congress can exert some greater role on presidential uses of military force. I also, you know, one point I'd also like to put on the table, because this is really one of the points of the article that you referred to before, is that I do think lawyers especially tend to kind of misframe the issue and put too much emphasis on the President's power to send forces into battle. You know, wars rarely occur suddenly at one single decision point in which the decision maker, usually the President, chooses yes or no. Wars usually result from or are averted by a whole series of moves and decisions in which both branches are playing some role. And so I think it's important that if Congress is going to play a stronger role in matters of war and peace, it needs to be involved in defense and security policy well in advance of crisis. I mean, if Congress is only really getting into the game at a time, at that moment where the President is deciding whether or not to use force, it's already too late. And so I would say not only does Congress need to up its oversight game, but it needs to do so well in advance of any one particular crisis.
- [43:23]
G
Matt, just to follow up on that. So understanding that Congress has these other non war Powers resolution mechanisms in its quiver right now that it could be using, why should we be more confident that Congress will step up and use those mechanisms? I mean, we have this history of Congress not stepping up under the War Powers Resolution, so why should we think that Congress more assertive in these other ways?
- [43:54]
F
Yeah, that is a very fair question, especially because earlier in this conversation I said, hey, you know, I'm not sure reform is possible anytime soon given that Congress is a total mess. And you know, added on top of that, all the reasons that Brian mentioned before as to why members of Congress often avoid taking stands on matters that they don't have to and sort of incurring some political risk and so on. So I guess what I would say is I think any reform is going to be Very difficult. I think you are more likely to get reform of Congress's existing oversight powers, better use of the tools that it already has available to it, the use of open hearings, closed hearings, reporting requirements, things like that. You're more likely to get that type of reform, including, by the way, reforms or practices that don't even require both houses or even an entire House of Congress to act. There are things that individual members of Congress can do, I mentioned before, especially if they hold a gavel, but also just getting out there in the public and making a lot of noise. Some members of Congress have proven very, very effective in doing that. But I think on the whole, a reform agenda focused on making better use of Congress's existing oversight tools stands a better chance of getting somewhere than trying to think about how do we reform more generally, the War Powers Resolution, for example, how do we create a more airtight and enforceable War Powers Resolution, or even how do we try to design kind of optimal force resolutions for particular contingencies. So any reform is difficult. I'm trying to be realistic about what type of reform stands the best chance of actually getting somewhere.
- [46:15]
A
Great points by Matt. I'll just say I think I consider myself sort of an all of the above reformer. And I'll highlight a notable contrast between the ongoing hostilities with the Houthis and a comparable conflict in many ways, the 1987-88 tanker war during the Reagan administration, when US naval forces were trying to protect tankers in the Persian Gulf, the Straits of Hormuz from Iranian attacks. And there were similar war power issues raised then. But at the time there was much more robust congressional engagement. There were hearings about this. And at the tail end of the conflict, there was even a special subcommittee stood up in the Senate Foreign Relations Committee, chaired by then Senator Joe Biden, to look into the war powers issues raised by that conflict. And so in some ways, the war powers muscle, even for oversight purposes in Congress, has atrophied. And I very much agree with Matt's point earlier that this should be a moment for propitious moment for war powers reform. And maybe it will be after the election, depending on how things go. But there's much more that Congress could do even short of legislation in this space. I also wanted to comment on terms of an important point Matt made, that the relevant decision is not just at the moment of whether to dispatch US Troops into battle, that there may be a number of decisions leading up to that which Congress might have more of a role in. And I think that's relevant. What we're seeing in this conflict here because the only site, one of the few sites, I should say one of the few sites where there's actually been US Fatalities in the course of this conflict is an outpost in Jordan on the border with Syria known as Tower 22, which seems to be in support of US operations in Syria at a place called Tanf Garrison, which really, based on public reporting, based on what I've heard from people, administration doesn't have any counter ISIS function, doesn't have. The purpose is pretty unclear. But Congress is not really held the administration's feet to the fire on it. And the administration has just sort of kicked the can down the road by leaving US Forces at this vulnerable location. And so they came under attack after October, and tragically, some of the troops supporting that mission were killed earlier this year. And so by leaving US Forces exposed in these locales without any clear purpose or without debating the purpose for their deployment there, you're teeing up situations like we've seen in recent months.
- [48:52]
F
Yeah. One point I just wanted to jump in on, that was an important point that Brian raised earlier, was forcing greater deliberation on, let's call it war aims or end games. That one thing I think, and here's. I will be critical of the times that Congress has formally declared war or has formally authorized conflicts is often it does so with very, very little forethought about what the end game is. I mean, if you go back all the way to the War of 1812, pretty much every formally declared war occurred without any clarity within Congress, let alone kind of agreement between the political branches about what our war aims are or what kinds of end games are achievable, are sort of beneficial. Where are we going with this conflict? And so there again, you know, if I were to think about what kinds of issues should Congress be focused on, that's one where I think it needs to be spending a lot more of its attention. And that often means making greater use of its oversight powers after, well, after force is used. I mean, obviously a lot of that work needs to take place at the front end. But I think there's a. There's, you know, there's a tendency, I think, sometimes for Congress to want to get very involved at the front end, and sometimes it passes a force authorization, forced resolution. And then there can be sort of this sense of, all right, now, now we sort of did our thing. Now it's over to the executive branch to wage that war. And yeah, but if things really go south, maybe we'll start getting back into the action. And I think that was the story, for example, of the 2003 Iraq War. I think there are many historical examples of that. And so I would like to see Congress assuming not just a stronger oversight role at the front end of a conflict, but really recognizing that that that oversight role is one that extends throughout the entire course of a conflict.
- [51:32]
E
Yeah. As we've moved into the reform portion of the discussion, I'm mindful of this irony at play that many of the reasons why Congress may not be exercising these powers it already has are the same reasons or many of the same reasons why meaningful reform legislation is not possible. But Brian, turning to you and some of the specifics in the report in terms of reform, you do mention, of course, that legislation is a worthy long term goal. But short of that, there are many proposals. Matt laid out some as well. You laid out some earlier. But I want to just give you the space also to really dig into some of the specifics in terms of reform that you lay out in the report.
- [52:10]
A
Yeah. So I think there's an important point here which is that the dynamics of responding to any particular conflict may be very different than sort of generalized reform that's abstracted from any particular context. And you're more likely to have potentially wider bipartisan support for that if it's not viewed as targeting the agenda of a particular president. So I think that's why right now in the leap to the election, it's really not a good time to hope that any of this is going to happen. Depending on the outcome of the election, however, there may be space potentially as part of the NDAA process, to tighten up the War Powers Resolution around the margins, including by defining some of the key terms such as hostilities or introduction of US Armed forces and hostilities, to hopefully close some of the loopholes that this administration and administrations before have used to avoid the 60 day clock. Longer term, there have been proposals, bipartisan proposals in both houses of Congress to overhaul the War Powers Resolution. In addition, one area that did make some headway that's currently blocked in the House was Repealing the outdated 2002 Iraq AUMF, the war authorization that was the basis for the Iraq War and the invasion of Iraq. Saddam Hussein's been dead for a long time. The reason for that war authorization has long since passed and there's also long overdue for Reform for the 2001AMF, the authorization for the War on Terror. So there are plenty of projects here. I think there is bipartisan support for different aspects of them. I think that the lowest hanging fruit, perhaps in the next Congress, would be repealing the 2002 AUMF. And again, I agree with Matt on the need for Congress to flex its other muscles, including on oversight. Kreisler has done some work on that front as well. So there's plenty of things that Congress could do here if it's willing to muster the political will. The hope is also that if the War Powers Resolution is tightened up, if these deadlines are more meaningful, it will also force Congress to take more responsibility in this space. It won't be able to as easily abdicate and underreach and allow the administration of either party to conduct these operations unilaterally.
- [54:38]
G
Matt, could you give us your specific reform proposals, what you would take from what Brian said, and maybe where you depart?
- [54:46]
F
Yeah, so I think one place where I would depart with Brian, as well as some other reformists, is I just don't think reforming the War Powers Resolution is possible or even wise. One of my colleagues, Patrick Holme and I, have been working on a project about a particular risk that we worry about in reforming the War Powers Resolution, which is the possible dangerous effects it might have on our alliance relationships. But in any event, I would not try to reform the War Powers Resolution. But as I said, I would direct that energy to improving Congress's use of its existing oversight tools. What does that mean? That would be things like addressing the fact that Congress's foreign policy and defense committees have atrophied in recent years. More open hearings can play an important role in subjecting executive branch policy to greater public scrutiny. More closed door hearings can allow Congress to examine executive branch policy outside of the spotlight. That often produces very unproductive grandstanding in both of those settings, open and closed. Congress can and I think should be playing hardball to secure from the executive branch more regular and detailed reports on diplomatic, military, intelligence, and legal analysis. There's a lot of jurisdictional siloing among the foreign relations, armed services and intelligence committees on Capitol Hill. In other words, I think there are a lot of steps that Congress could and should take to get its own houses in order before looking to impose new general legislative frameworks on military interventions. And that's partly also for a reason that Brian alluded to earlier, which is military interventions. Crises take all kinds of different forms. Sometimes they take the form of the United States initiating military action. Sometimes it's the United States responding to military action. Sometimes the United States provokes crises. Sometimes it fails to deter them. There are a lot of different types of crises that can result in the use of military force. And so I'm in general skeptical of sort of one size fits all type legislative frameworks. And I think that's what the, the War Powers Resolution was. It's a reason, yet another reason why I prefer to focus on Congress's other, other legislative tools.
- [57:46]
G
One broader question that I want to wrap up with, and I'm interested for both of your views on this, and I thought of this when I was reading Matt's article. So Matt, you argue that perhaps Congress's decision making is not always necessarily better than the President's with respect to the use of force. So if we're optimizing for the best use of force decisions, then maybe turning over the power to Congress won't necessarily address some of the problems that, that we've had in the past. So do you think that we should be solving for the optimal use of force as a strategic matter, or should war powers be exclusively about restoring the institutional balance of power?
- [58:36]
F
It's a great question. I think there are both some reasons of principle and some reasons of pragmatism why we need to be thinking about appropriate checks and balances here. I mean, I do think there are reasons of principle that it's important that there be some inter branch checks. I am not comfortable with the idea that any one man or woman decides whether or not the United States goes to war. I do think, by the way, that Congress is often much more involved in decisions of war and peace than usually supposed. But I do think that is an issue of principle that there does need to be some checking. And in general, I am uncomfortable with the idea of pure presidential unilateralism as to how do you get sort of better decision making. And you know, Brian had some important points about this earlier. I do think processes of, of oversight, for example, do push the executive branch to justify, to think more carefully through its actions and be, you know, if you're forced to justify them to another branch, if you're forced to justify them publicly, I do think that disciplines your thinking and can lead to some better decision making. However, I do also want to be realistic about just how effective congressional deliberation is. I mean, I do think sometimes in these discussions about war powers there's kind of this romanticized, idealistic view of kind of Madisonian Congress, ah, the deliberative branch, that if we submit these kinds of issues, these kinds of questions, should we go to war or not to Congress? Then through this slow, cumbersome deliberative process comes wisdom comes out at the other end. And we just need to be realistic about how defective that deliberative process can be about military intervention. I mean, I think you go back to our first declared war, the War of 1812. You know, Congress deliberated, Congress declared it, and it was a terrible war. I mean, everything that the war declaration clause was supposedly therefore kind of failed. Congress declared war, but the United States wasn't ready for war. Congress declared war, but it wasn't, there wasn't clarity about why we were going to war, what our end game was going to be. You'd expect that a war declaration process would ensure that there was wide and deep buy in throughout the country for war. War of 1812 was, I think, our most divisive war. Right. New England almost splits off from the rest of the Union over it. Why do I go all the way back to the War of 1812? Well, we're talking about kind of Madisonian processes here. And Madison was the, was the president then. I think throughout American history, one of the lessons is that even perfect process doesn't lead to perfect outcomes. And so what we're looking for here, or I think the best that can be hoped for at a practical level, is processes that help ensure that the tough questions are asked and that, look, there's a lot that's unpredictable about the way in which conflicts unfold, but we can do as best a job as possible thinking through various contingencies at the front end and as I said, continually updating our assumptions about those conflicts and continually updating our thinking, the government's thinking about what appropriate and achievable endgames are.
- [63:03]
G
Brian, what should we be optimizing for in the war powers reform context?
- [63:08]
A
So I think we should be striving for a few things. One is mechanisms to require or at least encourage greater deliberation about use of force at the front end and continued use of force to create a deliberation both within the executive branch and within Congress and between Congress and the executive branch. And ideally the 60 day clock on the War Powers Resolution should force that. But the problem we've been discussing today is that through creative lawyering, the White House is able to get around what should be a forcing function there. But I also think we want to encourage mechanisms that support democratic accountability. If U.S. service members are going to be placed in harm's way, if they're going to be taking life or exposed to enemy fire, then the White House and members of Congress need to own those decisions. And so I think it's disingenuous for US Forces to be placed in those situations, but Congress disavow responsibility or the White House claim that U.S. forces are not at war. I think political actors need to own the situation. When US forces are placed at risk.
- [64:19]
E
That way, well, I think those guiding principles and ideals to live up to seem like a perfect place to end. So with that, Matt and Brian, I really want to thank you both for taking the time.
- [64:30]
A
It was a real pleasure. Thank you.
- [64:31]
F
Thanks for having me.
- [64:35]
E
The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfair material supporter through our website, lawfairmedia.org support. You also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other shows, including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at Law. The podcast is edited by Jen Patia and your audio engineer. This episode was Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.
- [65:23]
I
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