A Few Thoughts on Yesterday's AUMF Hearing

By Benjamin Wittes
Wednesday, December 10, 2014, 11:39 PM

Jack aptly stated earlier today many of my thoughts on yesterday's hearing on an Islamic State AUMF---at which Secretary of State John Kerry testified. In particular, he highlighted the broad authorization the administration is seeking---one with few of the sort of accountability mechanisms Jack, Matt, Bobby and I have suggested. And he highlighted as well the administration's backhanded method of seeking this authorization, which involves refusing to ask for it---a tactic Jack describes as "leading from behind" and which I have described elsewhere as analogous to the boy who wants to dance with a girl but doesn't want to risk rejection by asking.

In this post, I want to focus on a different aspect of the hearing: The diversity of opinion among senators on some of the key policy issues on which an AUMF must take a position. After all, while the senators seemed---quite rightly---united in frustration at the lack of administration leadership, they don't at all agree among themselves on the key elements of what an ISIS AUMF should say.

They agree on one important element: that there should be an ISIS AUMF. There seems to be broad agreement that Congress should play a greater role than it has to date, that members should---as Senator Barbara Boxer put it---go on the record in support of action against ISIS. But beyond this basic point of agreement, there's not a great deal of consensus.

Here are some of the fault lines:

Broadly speaking, the Democrats want a restriction on ground troops. They cast this limitation on authorization as a desire not to authorize more than the president---who has promised not to launch a major ground operation---wants actually to do. The idea is that if he wants later to expand the conflict to involve a major troop deployment, he can come back to Congress and get authorization for it. But many of the Republicans on the committee feel strongly, with Kerry, that this would be tying the President's hands. The basic division here is between those who don't want to give the president a blank check and those who don't want to signal a lack of commitment to the fight. Both sides seem to feel pretty strongly on this point, and I wonder if the result will be a kind of stand-off in which nothing moves.

Second, some Republicans spoke up against a sunset provision, while Rand Paul and some Democrats want a sunset shorter than the three years that Chairman Menendez proposed---and Kerry accepted subject to an ill-defined administration override. The concern here is that a three-year sunset will shackle the next president, creating a situation in which he or she comes into office and suddenly faces a lapsing of authority to wage a conflict everyone still expects to be ongoing. Conversely, those who want a shorter sunset worry about recreating a Forever War and want a relatively quick forcing mechanism to make the President come back to Congress.

Third, there is a sharp divide on the committee over geographic limitations, on which some members insist and which others see as legislative micromanagement of the conduct of a war.

After watching the hearing and reading a transcript, I was honestly left unsure as to whether there's a way to thread the needle and come up with language that a broad bipartisan majority will support and that the administration would also embrace.