After ten years of attempting, Democratic Senator Tim Kaine of Virginia is about to succeed in having Congress overturn the declarations of war against Iraq that were made in the early 1990s and again in the early 2000s.
Sen, Todd Young of Indiana, a Republican, and the White House both back Kaine, who also has the backing of a bipartisan group of lawmakers. On Thursday’s episode of “The Lead,” he and Young discussed their plan with CNN’s Jake Tapper.
I asked Kaine more questions, the most crucial of which was what would be achieved by revoking these authorizations given they are both no longer in use.
The US military has been occupied in several nations as a result of another authorization for the use of military force, or AUMF, passed in 2001.
Below is a transcript of my phone chat with Kaine, which has been lengthened and includes a history lesson on pirates.
WOLF: Give a quick review of war powers from your point of view. What actions can be taken by the president, and what should Congress take?
KAINE: When the Constitution was being written in 1787 by the Convention, this was one of the most hotly contested clauses.
They were doing something purposefully quite different from other countries, which had a tendency to make war-starting a matter for the king, the emperor, the monarch, and the government, which was one of the reasons it was so thoroughly considered.
In essence, Article 1 states that Congress must vote to declare war. The budgetary authority to fund the government, including the military, belongs to Congress.
The president is designated as commander in chief by Article 2. The worst thing you could have would be 535 commanders in chief, even if Congress decides to initiate. Therefore, the executive gains control over any military operation once it has been approved by a vote.
The argument made in the discussions at the time and in the years that followed was that the commander in chief has the authority to take action without the consent of Congress to defend the United States from an impending assault. The executive branch can always take care of defence, but a congressional vote is required to launch an offensive military operation.
That is incredibly clear.
The debates make the rationale for it quite plain. The idea is that before sending troops into combat and putting them in danger of losing their lives, you should have elected officials discuss the issue in front of the general public.
However, because war votes are politically difficult, Congress has frequently ceded authority to the administration since the beginning.
Republicans and Democrats in Congress followed by Whigs and Federalists frequently deferred to presidents of all parties. When I entered the Senate ten years ago, I was determined to buck that very sloppy trend.
WOLF: War has been ended via peace accords. I suppose technically the Korean War is still ongoing. Why is it critical to act now in relation to Iraq?
KAINE: There isn’t a peace treaty that puts an end to the Korean War; instead, there is a cease-fire. Many people find that surprising.
Sen. Young and I firmly think that Congress should regain the authority to declare war in this instance, as well as the authority to proclaim when a war is finished.
In the case of Iraq, we first declared war on the country in 1991 in order to kick Iraq out of Kuwait, and then again in 2002 in order to overthrow Saddam Hussein’s regime and the Baath Party.
Naturally, the Gulf War ended quite swiftly, and Iraq was driven out of Kuwait. The Baathist regime of Saddam Hussein was overthrown. As a result, the war we are fighting against Iraq is over.
Iraq is no longer an enemy, in particular. Currently, Iraq is a security partner. In response to their invitation, we are collaborating closely with Iraq to combat ISIS, as well as serving as a security partner to Iraq in an effort to counteract Iranian influence in the region.
First, this is a congressional power that we should take seriously, according to Sen. Young and I.
Second, it is improper to have a live and pending war authorisation against a country with which we are currently collaborating.
Third, having a war authorization that is not actually necessary presents a chance for mischief that a president can take upon and exploit to claim that Congress had the right to carry out the action.
Another reason why Congress should withdraw the authorisation once a conflict is finished is so that the president would have to contact us again if he or she determines that military action is necessary.
WOLF: When these two authorizations were used, George H.W. Bush and George W. Bush both said something along the effect of “Thanks for approving this resolution, but I didn’t actually need it,” according to a Congressional Research Service study I was reading about them.
“My request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests, or on the constitutionality of the War Powers Resolution,” said George W. Bush in 2002.
“As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use the Armed Forces to defend vital U.S. interests or the constitutionality of the War Powers Resolution,” said George H.W. Bush in 1991.
It appears that the presidents who requested these resolutions believe they weren’t fully necessary. Would you concur with that?
KAINE: No.
A president does have the authority to protect the country from an immediate threat, an ongoing attack, or an immediate threat of assault, but there is sometimes a fine line between what constitutes a defensive move and what constitutes an offensive action.
As president, Thomas Jefferson had to deal with this right now. The Barbary Coast pirates were attacking American shipping in the Mediterranean and had ties to the countries of North Africa. Jefferson held the opinion that as commander in chief, he might direct his naval ships to open fire and protect themselves from these assaults.
Then, though, he was like, well, do I want to just put up with constant assaults, or would I prefer to send the Navy into the ports to essentially scuttle the ships that are attacking us? Jefferson responded, “Look, I need Congress in that situation.” The distinction between an aggressive activity and a defence against an impending attack can be a little arbitrary. It isn’t always obvious.
But both Presidents Bush went to Congress for a reason.
In this case, the presidents made the proper decision. In order to obtain the permission, they went to Congress.
Regarding the timing of the authorisation for the Iraq war, I was very critical. Just before the 2002 midterm elections, in October, this was presented to Congress.
Invasion didn’t begin until March of 2003.
In fact, March 19 will mark the 20th anniversary of the invasion.
I was highly critical of the timing at the time since it appeared to be done to maybe campaign. But at least the president informed Congress, and the authorisation was approved by Congress.
However, it is now past due for us to retire them.
Since 2009, the US military has not used this permission to support military action. However, despite having a separate authority or with the support of the Iraqi government, the US military has been quite active in Iraq.
In reality, the White House informs Congress each year of the locations where the military has been present and used force in the year prior. The unclassified version of the paper summarises events in Somalia, Afghanistan, Iraq, and Syria in 2021. And the 2001 AUMF on terrorism served as justification for each of them.
So, if your suggestion doesn’t prevent US forces from operating in Iraq, I’m just curious what its practical impact is.
KAINE: You’re correct, I suppose, in a few instances.
These actions have not been carried out using this authorization.
The 2001 authorisation to take legal action against terrorist organisations linked to the 9/11 attackers is still in effect, and in my opinion, it has to be revised.
I have twice proposed amendments to the 2001 authorisation that would more precisely define which terrorist organisations the US could use military force against them and when. I’m still trying to reach a bipartisan agreement on that, but it’s not there now for me to move forward.
My stance has always been to abolish the authorizations that are blatantly out of date.
The Biden administration acknowledges that the Iraq authorizations from 1991 and 2002 are out-of-date and, as said, would sign and revoke them. Let’s eliminate those. Then, after more than 20 years, we can consider the issue of modifying and restricting the 2001 authorization.
The War Powers Resolution of 1974 (which is actually of 1973 and is more commonly referred to as the War Powers Act) is the last thing I want to try and rewrite in order to remove some ambiguities and create a more robust consultative process between the Article 1 and Article 2 branches regarding any questions about war.
How would you enclose that resolution from 2001, which was much more popular? Based on that approval, we have been to 15 different nations and carried out a large number of military missions. The US administration believes that by claiming that there are terrorists, it can virtually wage war against anybody it wants.
The president’s power is temporarily reduced by what you’re doing with the Iraq resolutions, but he still has a lot of power that we’re not even discussing. How would you encircle him?
KAINE: The opponent is not specifically identified in the 2001 permission. Additionally, it places no time or geographic limitations on the war authorisation. So it’s a 60-word authorisation that is entirely unrestricted.
It defines the enemy in some detail. It implies that a non-state terrorist group must be linked in some way to those responsible for the 9/11 incident. You have Al Qaeda, then. However, both the Taliban and al Qaeda have numerous branch organisations.
It has been employed against groups that may declare loyalty to al Qaeda but have never waged war against the United States.
For instance, in Africa, we frequently fight against groups that may be terrorist organisations and assert that they are an affiliate of al Qaeda in the continent, but despite this, their actions are always geared at other regional governments and the United States.
The versions I’ve previously introduced focus on geographical and temporal constraints. They need more advance notice to Congress, similar to how the State Department must give more notice to Congress before designating foreign terrorist organisations. If such notice is issued and the government feels that this specific terrorist group poses a concern, there may be a possibility for legislative involvement to either approve or disapprove.
I’m writing this from memory because I’m in a car and I didn’t call up any of my earlier documents on the subject. However, it would essentially be a more specific definition of who the group is, with more notice to Congress, limitations on time and place, and most likely an AUMF that would periodically expire absent congressional authorization.
WOLF: For ten years, you’ve been working on this. Since this permission hasn’t been used since before you were in the Senate, it seems like a no-brainer. What caused the delay? Inertia, perhaps? Is it a worry about usurping the president’s authority?
KAINE: Well, I believe you identified it.
I’ll start by saying that the Biden administration is the first to indicate that we would be happy to sign this. Obama’s administration was hazy. The Trump administration battled against repealing this authorisation vehemently and would not concede.
If you have a hostile CEO that doesn’t want something to be sunsetted, you start with a lot of votes against you in a closely divided Congress.
Being able to rely on President Biden, who served on the Foreign Relations Committee for 36 years and wants to be strong in his use of Article 2 power while also understanding Article 1 power, is really beneficial.
Second, Zach, in my ten years in Congress, I’ve only recently seen this. I started off in a lonely position on this. Recently, I’ve noticed that more and more lawmakers are coming to the same conclusion that I have: open-ended war declarations are undesirable for a number of reasons, and they ultimately abdicate Congress’s responsibility.
That ought to be our most jealously guarded action. There is a pretty broad range of ideologies represented by the 22 senators who have co-sponsored this as well as the House members.
Back in 2013, when I began working on this, that would not have been the case. However, I believe there is a growing understanding that Congress needs to reclaim some of this authority.