Air Strikes Renew Battle Over War Authorizations

Sunday’s air strikes in the Middle East have renewed debate on Capitol Hill over the continued need for an old war authorization, and an emerging need for a new one. 

Pentagon officials said the strikes, which targeted Iranian-backed militias in Iraq and Syria that use drones against American troops, were conducted for self-defense and fell under the president’s authority under Article II of the Constitution.

President Joe Biden ordered similar strikes in February to retaliate against Iran-backed militias that had attacked American civilians and troops. In neither case did the administration say it was acting under the 2001 Authorization for the Use of Military Force, which allowed military action against Al Qaeda in the wake of 9/11, or the 2002 authorization, which gave the president authority to respond to threats from Iraq. 

The House voted this month to get rid of the 2002 authorization, a move the administration has said it supports. The Senate has yet to act.

But Sen. James Inhofe, R-Okla., the ranking member of the Senate Armed Services Committee, said Monday that the recent strikes prove that the 2002 authorization is still needed.

“While I commend President Biden’s defensive strike on the proxies’ facilities in Syria and Iraq, I believe these actions are overdue and highlight the continued need for the 2002 AUMF, or — at a minimum — the need for a comprehensive replacement before a repeal can be considered, especially given that Iranian-backed militias in Iraq are an ongoing threat to American troops,” Inhofe said in a statement.

Legal experts say the 2002 authorization was not needed for the recent strikes, since they were launched under the commander-in-chief’s constitutional authority. 

“The claims by lawmakers who are trying to make the case to pause on the 2002 AUMF repeal don’t hold water,” said Tess Bridgeman, a former deputy legal adviser to the Obama administration’s National Security Council who said the 2002 authorization is “a dead letter.” "We can have a debate about the appropriate limits of Article II authority…but this is separate from the debate about whether the 2002 AUMF should be repealed.” 

“If you were to get rid of the 2002 AUMF, it wouldn’t change this conversation at all,” agreed Oona Hathaway, a Yale Law School professor and former special counsel to the general counsel at the Pentagon. “It’s already the case that the 2002 AUMF really is defunct. It really does not provide any additional authority for a strike like this.” 

Some lawmakers suggest that this year’s strikes may amount to a sustained military operation in which Congress should have some say. On Sunday, Sen. Chris Murphy, D-Conn., said the actions are “starting to look like what would qualify as a pattern of hostilities under the War Powers Act,” which would require Congressional action. 

The president has the power to launch self-defensive military action to repel an armed attack or prevent an imminent one if there is no time to consult with Congress, but only lawmakers have the power to declare war under the Constitution. The War Powers Resolution requires that once hostilities have started, the president must either stop the military operation or get authorization from Congress within 60 days. 

But because of how narrowly the executive branch defines hostilities and the fact that these strikes last less than a day, the 60-day clock has become largely “irrelevant,” Bridgeman said. 

Hathaway said she believes the administration has already reached the point where it should consult with Congress after two strikes, since they don’t fall under either existing authorization. 

“If you have this ongoing threat…ordinarily authority to act under Article II is supposed to be used in situations where the president for whatever reason doesn’t have the opportunity to consult in any deep and significant way with Congress,” she said. “It’s not supposed to be a blank check.”

Other experts said that the president always has the authority to defend America. 

“Can you imagine if a month from now, there are still attacks happening and Biden said, ‘I really would like to defend our forces, but we can’t...do anything because it’s been a recurring series,’” said Robert Chesney, the associate dean at the University of Texas School of Law. “If they keep attacking us, we have the ability to self-defense.” 

And, without a clear pathway for Congress to approve a new authorization if Biden asked, it could backfire politically, Chesney said, pointing to the example of the Clinton administration asking Congress to authorize air strikes in the Balkans. Lawmakers did not approve the request, but the White House carried out the strikes anyway and “took a ton of heat.”