After four U.S. service members were killed in an ambush in Niger this month, members of Congress — some of whom admit they weren't previously aware of the American military presence in the region — are gearing up for another debate over the legislative branch's role in war.
Some lawmakers believe the attack in Niger may lend urgency to the debate over replacing the 16-year-old Authorization for Use of Military Force (AUMF) that was passed in the wake of the September 11, 2001, attacks to target Al-Qaeda.
But others remain skeptical a new authorization can be agreed upon anytime soon considering the many controversial points of the debate and a general reluctance among lawmakers to meddle with war powers during ongoing engagement abroad.
“I've been on both [the Senate Intelligence Committee] and Foreign Relations for nine years, and I've sat through dozens and dozens and dozens of hours of discussions, hearings, and debates,” Sen. Jim Risch (R-Idaho) told Independent Journal Review when asked about calls for Congress to pass a new AUMF on Monday night.
“Everyone agrees that it would be a good idea to have a new AUMF,” said Risch, who some expect may replace retiring Sen. Bob Corker (R-Tenn.) as chair of the Foreign Relations committee. But, he added, “there is real difficulty in agreeing on the details of what that looks like.”
Risch's skepticism came Monday night in the middle of that committee's hearing on the subject. Defense Secretary James Mattis and Secretary of State Rex Tillerson both testified before the committee and argued against repealing the sweeping war powers granted by the 2001 and 2002 AUMFs. They were especially concerned that there is no replacement ready.
Today, the 2001 AUMF is interpreted by the defense community to apply to a variety of military operations against groups like ISIS, who didn't even exist at the time of its passage.
And that lends itself to a constitutional debate. Where do the lines end of Article 1, which grants Congress the power to declare war? Where do the lines begin for Article II, which empowers the president to act as commander in chief?
Already in his first year in office, President Donald Trump demonstrated his willingness to take offensive military action abroad without getting approval from Congress when he ordered a U.S. strike on a Syrian airfield in April following a chemical attack on Syrian citizens that the U.S. intelligence community linked to Syrian President Bashar al-Assad.
But the question becomes murky when it concerns the battle against terrorism. Critics like Sens. Chris Coons (D-Del.) and Rand Paul (R-Ky.) say the original intent of the AUMF was to respond to the coordinators and associates of the 9/11 attack, and that, consequently, today's complex military engagements should require an updated, more specific authorization.
Congress has considered passing a new AUMF several times over the past few years, most recently in 2015 when the Obama administration pressed Congress to pass a new one to combat ISIS.
But those talks fizzled: The administration's fight against the terror group began and continued without a thumbs-up from members of Congress, and many lawmakers at the time hesitated to take a stand on such a hot-button issue they saw as a symbolic measure rather than practical necessity.
The situation in Niger seems to have prodded some lawmakers already eyeing the issue into action. Corker's committee has held two hearings on it this year, and when asked Monday night if he thought there was real momentum for a new AUMF, Corker was optimistic.
“Could be. I think there's a form that could pass, but we'll see,” he told IJR. “The questions today have been very good.”
If a bill is attempted, though, Corker believes it should be bipartisan from the start.
“We must also be mindful that moving an AUMF without significant, bipartisan support could send the wrong message to our allies and our adversaries that we are not united and committed to victory,” he warned in his opening statement.
Members of Congress do tend to agree on the need for a new AUMF regardless of party affiliation — though they still quarrel about the details. The two primary advocates for a new AUMF are bipartisan duo Sens. Jeff Flake (R-Ariz.) and Tim Kaine (D-Va.), who have pushed for an updated resolution for years and introduced their version of a new AUMF in May. Flake told IJR on Monday he also thinks there's momentum for the measure.
But why now, after pushing for his AUMF replacement for so long with no success?
“The Niger situation,” he answered. “Most didn't know we had troops there, and under what authority. I think that heightens a need for it.”
Flake and Kaine's AUMF would explicitly approve U.S. action against Al-Qaeda, ISIS, the Taliban, and associated forces. As the Daily Beast noted, it wouldn't actually establish many restrictions for the U.S. Department of Defense in waging the war. For example, the U.S. military would not be limited to operating only in locations expressly listed in the AUMF, and American citizens wouldn't be protected from being targets.
It would implement greater congressional oversight in defense decisions, though. Most concerning to Mattis and Tillerson was the proposal's sunset clause, which would require congressional reauthorization after five years. Mattis said in Monday's hearing that such a sunset clause would represent an arbitrary hurdle for the Defense Department to jump every five years.
But Kaine pushed back, arguing that the AUMF sunset was similar to the annual expiration of the National Defense Authorization Act, which Congress manages to pass every year.
Flake and Kaine's AUMF is just one of several recent attempts to replace the 2001 and 2002 authorizations with a modernized version. Some lawmakers, such as Paul, believe Congress won't take action on the issue unless it is forced to under a deadline by repealing the old AUMFs. Others argue Congress should have an AUMF replacement ready before repealing previous authorizations.
The Niger ambush added a sense of urgency to the issue, as members of Congress realized how vast American military operations under 2001 and 2002 AUMF authority are in scope and purpose. But that urgency, which was also present two years ago as Congress considered weighing in on the fight against ISIS, might not translate to progress on the effort.
Congress may not have the political bandwidth to pursue meaningful change on the contentious subject anytime soon, as Republicans kick off their ambitious tax reform push this week with plans to pass a bill before the end of the year.
In addition, lawmakers will have to deal with a government funding deadline and hike the debt limit in December, not to mention navigate ongoing negotiations to replace the Deferred Action for Childhood Arrivals program after Trump announced he would nix it in September.
But the challenging environment doesn't appear to be stopping Corker from forging ahead on the AUMF replacement.
“Obviously, the next logical step is for us to mark up an AUMF,” Corker declared Monday night as the hearing drew to an end.