The military situation in the Middle East is obscured by the fog of war. Added to the Israeli attacks on Hamas after October 7 is the rising threat of further conflict from the aggressive actions in the Bab al-Mandab Strait, close to the part of Yemen controlled by the Iranian-backed Houthis, who have also extended the general attack on ships further south in the Gulf of Aden. There are also intermittent skirmishes with Hezbollah, operating out of southern Lebanon, whose constant attacks have forced Israelis to abandon their homes in the north and to attack at least fifty targets in Syria since hostilities broke out October 7. Thus far, the United States has responded on a tit-for-tat basis, taking aim at the Houthis’ direct attacks on American and other shipping in the region, coupled with direct strikes against Houthi military facilities on land. Everyone knows that Iran is behind these attacks, supplying munitions, money and advice, but thus far it has escaped being the direct target of a direct military attack on its own soil. In this volatile situation, there is a well-nigh universal fear that the conflict may be escalating into a war that seems both inevitable and unwanted.
The source of the rising tension rests, since the withdrawal from Afghanistan in August 2021, on the inability of the United States to project a consistent use of force, inducing Iran and its various proxies to become ever bolder in their actions. These threats have domestic implications as well for the question of how control over the American response to this war should be divided between the Congress and the president. The point is now in high relief after the Senate Foreign Relations Committee chairman, Ben Cardin, stated that the president should come to Congress for an update of the 2001 authorization of the use of military force (AUMF) adopted a week after the attack of 9/11, an authorization that does not seem to cover today’s very different landscape.
The issue has obvious constitutional implications from a document that gives little direction on the issue. The basic division in the Constitution gives Congress the power to “declare war,” after which the president is commander in chief of the Army (yes, it includes the old Army Air Corps) and the Navy (which includes aircraft carriers). The last time the standard script was carried out was at the outset of World War II, when Congress approved a succession of declarations, all passed unanimously, against our Axis enemies. But in the eighty-two years thereafter, there have been many other serious encounters, including the United Nations police action in Korea, the Cuban missile crisis of 1962, the Carter efforts to rescue American hostages taken by Iran in 1979, the Clinton military actions against Libya and, of course, the attacks of September 11, 2001. No declaration of war accompanied these conflicts, given the fear that the use of that explosive word could trigger diplomatic obligations to follow the American lead.
As early as 1973 with the War Powers Resolution, Congress sought to tie the hands of the president by adding some flesh to the bare constitutional bones. The president may, as has been the uniform practice, respond to an armed attack on the nation or its military forces without waiting for any congressional authorization to do so. But the act purports to require the president to report military action within forty-eight hours, and then, after sixty days from the time of the required report, to stop action unless Congress has declared war or “enacted a specific authorization” to keep the fight going. The word “specific” seems to preclude a claim of implied authorization based on facts and circumstance.
The legislation in question was subject to a forceful veto by President Richard Nixon in October 1973, which was overridden by Congress the next month. The Nixon objections were based on both constitutional and policy grounds, both of which stressed that the infinite variation in these facts and circumstances made such hard deadlines unworkable. Nixon was scornful of the sixty-day cutoff requirement, which could lead to endless battlefield complications if a foreign foe intensified attacks on the United States in the hope that it would have to withdraw troops or negotiate from a position of weakness, given the looming deadline. And the entire structure could make it hard to respond to minor incidents (which could flare up into big ones) until it was clear whether the incident rose to a full-scale attack on the United States. Fewer of these complications could happen to that extent with a simple declaration of war, at which point the power shifts to the president, who in practice would typically ask for informal advice from Congress. But the Supreme Court has never tackled Nixon’s constitutional challenge head-on, so that there isn’t, and never will be, given the Supreme Court’s fierce determination to stay out of interbranch conflicts when it cannot control, any authoritative statement that will take the nation out of its constitutional limbo.
The shift from a declaration of war to an authorization of military force thus represents a subtle shift in the balance of power. A declaration of war reads like an on-off switch. The unanimous declaration of war against Japan and Germany made that a relatively easy task because the conversion of Franklin D. Roosevelt from “from ‘Dr. New Deal’ to ‘Dr. Win the War,’ ” as the Smithsonian puts it, meant that the United States had a single focus throughout the war. And the rapidity of the 2001 declaration showed a similar unity of purpose, as the deal was hammered out in a week.
Today’s situation is not remotely comparable in our deeply polarized nation, which will likely stymie any effort by Cardin and his allies to draft the master plan for this authorization. Take Gaza. Should Israel be allowed to destroy Hamas root and branch in order to prevent a repetition of October 7? Or are the collateral consequences too great? Or should those be attributed to the willingness of Hamas to circumvent the laws of war by taking human hostages or using human shields? Or will the Delphic judgment of the International Court of Justice alter the political landscape if it eventually finds Israel guilty of genocide? And is it possible for Biden to forge forward with his two-state solution for Palestine over fierce Israeli opposition?
Recall that the United States was unified in the aftermath of 9/11 when it adopted that AUMF, whose key provisions conferred upon the president authorization “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” That formulation had a very long trigger, which led to factual differences over virtually every key term. What counts as the same organization when there is a change in focus, structure, or personnel? What does it take for any nation to have “aided” these terrorist attacks? In retrospect, it has become all too clear that the 2001 AUMF contained no geographical or temporal limitations on using the resolution to “justify the deployment of US forces to Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia,” as Business Insider reported. Indeed, it is a puzzling question to ask whether and where the language of the 2001 AUMF applies today, given that some of those earlier parties may be active in the region today.
None of this history can be overlooked during the drafting process if Senator Cardin gets his way, for the next authorization will require extensive negotiations. It is clear that the president is in opposition, while the Senate Foreign Relations Committee’s ranking member, Jim Risch (R–Idaho), has blasted the Biden administration by claiming that it has “telegraphed” its punches to the enemy to give them ample time to move key resources and personnel out of harm’s way. Indeed, any genuine public debate will necessarily require the public airing of disputes that would be best resolved in private. Senator Cardin has candidly acknowledged that he does not expect anyone to pay heed to his entreaties, and we should hope he is right. Necessarily, the US military response will depend on tactical matters as they play out.
There is good reason to heed Nixon’s advice on how best to conduct a war. But it is important to remember that, new AUMF or not, what ultimately determines the success of American and allied military actions depends on clear appreciation of several key facts. The first is that the United States cannot negotiate from a position of perceived weakness, especially one that rests on the perception that the United States is spread too thin, with its long-term shortage of ships needed to operate in two, possibly three, theaters at the same time, coupled with a shortfall in recruitments. Also, much grief stems from the loss of focus of the Biden administration, which is on all sides of all issues at the same time, especially in its near-appeasement efforts to contain Iranian advances that will never be done with carrots but require a healthy dose of sticks. The internal debates we hold in the United States are not done in secret code but in language our enemies understand all too well. What the Biden administration needs is more backbone, less talk.
