June 25, 2014

On Senate Floor, Kaine Calls for Congressional Authorization of U.S. Military Action in Iraq & New AUMF

Madam President, I rise to discuss the current crisis in Iraq. In particular I want to discuss an important question: Would Congress need to approve any U.S. Military combat action in Iraq?

Last week the President summoned Congressional leadership to the White House to discuss the deteriorating situation in Iraq and a potential United States response. Press reports of the meeting had members quoted the President as saying he had all necessary authority for military action already and some accounts had the Congressional leaders also agreeing that the President had necessary authority.

Madam President, I do not believe that this President or any President has the ability, without Congressional approval, to initiate military action in Iraq or anywhere else, except in the case of an emergency posing an imminent threat to the U.S. or its citizens. And I also assert that the current crisis in Iraq, while serious and posing the possibility of a long-term threat to the United States, is not the kind of conflict where the President can or should act unilaterally. If the United States is to contemplate military action in Iraq, the President must seek Congressional authorization.

Let me point out that the White House has been in significant consultation with Congressional leadership and members in the past weeks, and that consultation is important and it's appreciated. But it's not the same thing as seeking Congressional authority. That has yet to be done, and it must be done if the U.S. intends to engage in any combat activity in Iraq.

Madam President, a word about the law. The Framers of the Constitution had a clear understanding regarding decisions about war. Congress must act to initiate war. A war, once initiated, is then managed by the President as Commander in Chief. The principal drafter of the Constitution, Virginian James Madison, often explained why the allocation of power was drawn in this way. Quote: "the Constitution supposes what the history of all governments demonstrates: that the Executive is the branch of power most interested in war and most prone to it. It has accordingly, with studied care, vested the question of war to the Legislature."

The Framers did understand that a President must be able to act in an emergency to protect the United States or its citizens even prior to Congressional approval. And that was especially the case in a day when members of Congress, upon the recess, would ride horses back to Vermont or wherever they lived. A President had to be able to act if the U.S. or an embassy or a naval ship was under attack. But even in those circumstances, Madam President, the framers understood that in an emergency, a President could act but would then still need to seek formal Congressional approval of any military action that had been taken.

It's important to understand that this basic allocation of powers, is not just about Constitutional phrases, it's about underlying values. First, the requirement for Congressional approval ensures that American troops will not be sent into combat without a clear political consensus that the mission is worthwhile. It would be the height of public immorality to order service members to risk their lives when the nation's political leadership has not done the work to reach a consensus about the value of a mission. Secondly, the requirement of Congressional approval to initiate war also guarantees that there will be a public process of debate and voting by which the citizenry can also become educated about what's at stake and whether America should take the grave step of authorizing war to protect the national interest. Congress, as the decision-maker, as the initiator, as the declarer of war, supports these important underlying values.

Now, applying that law to Iraq, the current situation is very troubling. Congress authorized war in Iraq in 2002. In 2008, President Bush signed an agreement with Iraqi Prime Minister Maliki to cease combat operations and withdraw U.S. Troops by the end of 2011. After President Obama became President, he worked with Iraq and was willing to have U.S. troops stay past 2011 to provide continued assistance to the Iraqi security forces if they desired it. But the Iraqi government would not provide the immunities and other security assurances that were necessary for the United States to stay. They basically communicated that they did not want us to stay. And so the U.S. military ceased combat operations and departed in 2011. By all accounts, the U.S. combat role stopped at that moment.

In the years since 2011, Prime Minister Maliki has governed Iraq in way that has exacerbated tensions between the country’s ethnic groups. In particular, instead of building an Iraq for all Iraqis, the Maliki government has preferred the Shia population with the support of Iran and marginalized, even oppressing the Sunni and Kurdish populations. These regrettable actions have weakened the support for the government and then created a fertile ground for the growth of Sunni extremists. The fanatical Sunni organization ISIL has grown in its campaign to topple the current Syrian government and the now seeks to do the same in Iraq as part of its plan to establish a larger, single Sunni caliphate from Lebanon to Iraq. ISIL is a well-armed and well-funded organization of jihadists. While their primary motive is the toppling of governments in the region, there is little doubt that they will seek in the future to strike western targets in Europe and the United States. This explains the current concern and the current debate in this body about how to counter the threat that ISIL poses. But while ISIL terrorists pose a concern, it is important to point out, Madam President, that there is nothing in current law that would allow the President to take military action against them without Congressional approval.

So let's look at current law. Congress passed an Authorization for the Use of Military Force immediately after 9/11, the 9/11 attacks, to allow action against those who perpetrated the attacks on that day. ISIL had no connection with the 9/11 attacks. ISIL did not form until 2003. Now both the Bush and Obama administrations have broadly interpreted that AUMF to allow attacks against Al Qaeda or associated forces. But ISIL is not Al Qaeda, nor is it an associated force. While it forged a temporary alliance with Al Qaeda in 2004, three years after 9/11, it is now an avowed enemy of Al Qaeda, and it's viciously battling Al Qaeda in Syria as we speak. 

It would be a wholly unprecedented stretch to suggest that the 2001 AUMF would justify action against ISIL in Iraq. Congress acted in 2002 to authorize military action in Iraq to topple the regime of Saddam Hussein. All combat operations ceased in 2011. And even the administration now maintains that the Iraq AUMF is now obsolete and it should be repealed. Clearly the 2002 AUMF would not support unilateral action against ISIL.

In some instances, a President relies upon a treaty, ratified by Congress, that requires the U.S. to come to the military defense of an ally. But there is no such treaty obligating America to defend Iraq in this instance. And finally, Madam President, there is not yet an imminent threat to the United States that would allow the President to take unilateral military action against ISIL. The Administration rightly points out that the growth of ISIL could approve a threat to the U.S. In the medium or long term, but they pose no imminent threat to the United States today. Of course, should ISIL threaten the U.S. Embassy in Baghdad, the President could take emergency military action to rescue American personnel. And all of us are watching carefully, and all of us will support action to protect the lives of our diplomatic personnel.

So I conclude, Madam President, from looking at all the authorities, that the President cannot initiate unilateral action in military with the sole exception of acting promptly, if needed, to secure American embassy personnel. The dangerous situation with ISIL in Iraq is exactly the kind of situation where the President must not only consult with Congress, but he also must seek Congressional approval for any proposed military action. Now, we know seeking Congressional approval for military action is very challenging, and it's contentious, and it's supposed to be. While this often frustrates the Executive, it is how the system is supposed to work. And when Presidents follow the rule, it generally works out for the best.

Let me use the recent example of Syria when the President did follow the basic form and it worked out in a way where something positive happened, not everything that we might want but something positive. The President laid down a clear red line. The United States believes it would be wrong for Syria to use chemical weapons in violation of the 1925 Geneva Convention. In August of 2013, Syria crossed that red line and did use quail chemical weapons against men, women, and children. The President weighed what to do. He didn’t act unilaterally. He came to Congress seeking authority to punish the use -- the Assad Administration for using chemical weapons and to deter their use in the future. As a member of the Foreign Relations Committee, we had extensive hearings, and then we voted to grant military authority to the President to take action under the circumstance.

Now, Madam President, as you know, it was contentious in the body. The matter never came to a full vote in the Senate floor and the House floor. But after the Foreign Relations Committee authorized the President to use military force, Syria then stepped up for the first time, acknowledged that they had a chemical weapon stockpile, essentially acknowledged that they had used it, and then committed through international organizations, the U.N., to destroy one of the largest chemical weapons stockpiles in the world. That accomplished the mission that the President had put on the table to deter future use of chemical weapons. There is no better deterrent of that stockpile of chemical weapons than their complete destruction. And as of now, the entire declared chemical weapons stockpile of Syria has been destroyed, and work is under way to determine whether there's undeclared elements of the stockpile that still must be destroyed. The fact of the destruction of this chemical weapons stockpile happened because the President followed the rules, came to the Senate, we acted to support military force, and that led to this important breakthrough. I met two weeks ago with officials connected with the Israeli government, and they said -- they described what a game changer it is in the region for Syria's neighbors -- Turkey, Israel, Jordan, Lebanon -- to have that chemical weapons stockpile removed. So the President followed the rule, came to Congress, and, while the Syrian Civil War is not over and is carrying on in horrific ways, that huge stockpile of weapons of mass destruction is now gone. That teaches me and tells me, let's just learn from that.

The President should come to Congress, if military action is contemplated in Iraq, and he has an excellent opportunity before him to initiate that discussion right now.

All know that the 2001 authorization passed in the days after 9/11 to enable us to go after the attack's perpetrators is badly in need of an update after 13 years. Despite its facial language only allowing military action against those complicit in the 9/11 attacks, it has been broadly interpreted to authorize a global war against Al Qaeda or associated forces so long as they pose a threat to the United States or any of its dozens of -- quote -- "coalition partners." That AUMF 13 years later has no geographic limitation. It has no expiration date. Members of the Administration have testified in Senate hearings that they expect that the war declared in that AUMF may go on in for the next 25 to30 years.

I have no doubt -- I wasn't here in 2001, but I have no doubt that the members of Congress who voted for that authorization never would have contemplated war lasting into the 2030's or 2040's. And the American public has never expressed support for such a notion of perpetual war. But, Madam President, the threat posed to the United States and our allies by non-state terrorist organizations, whether it’s ISIL or Al Qaeda or Boko Haram or Al Nusra or others—that threat is real and it’s growing. And the very nature of the threat is quite different from the old notion of nation-state military power that was our standard challenge even to the end of the 21st Century.

In a speech in May 2013 to the National Defense University, President Obama recognized that the Administration and Congress have to work together to examine and update the 2001 AUMF in order to narrow its scope, clarify what it allows, and make it suitable for the new challenges put before us. I heard many of my colleagues say exactly the same thing, but, Madam President, there has been no progress on this necessary update. The Administration has made no proposal. There is no AUMF revision under active consideration in either house. Strangely, while all acknowledge that the authorization needs an update, we drift from crisis to crisis--Syria, Iraq, P.O.W. exchanges--without grappling with the underlying document that initiated our entry into war. We cannot afford further delays in tackling this important task.

So as I conclude, I encourage all of us—Congress and the Administration--let's embark on the work of updating the 2001 authorization to reflect the current dimensions of our security challenges. The Administration should send to Congress a proposal for a revised and narrowed authorization that specifies how the United States should seek to counter threats posed by groups like ISIL. There will be a role for the military, and there will be a role for counterterrorism activities carried out by our intelligence agencies. There will be a role for diplomacy, and there will also be a role for development assistance to eliminate the conditions of desperation that so often breed fanaticism. But it is time for those rules to be clearly described so that they can be publicly debated and ultimately adopted by Congress. Madam President, I yield the floor.

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