Effort to repeal, replace president’s war powers gains traction

Secretary of Defense Jim Mattis and Secretary of State Rex Tillerson listen during a Senate Foreign Relations Committee hearing on authorizations for the use of military force, Oct. 30, 2017 on Capitol Hill.


By CLAUDIA GRISALES | STARS AND STRIPES Published: October 30, 2017

WASHINGTON – On the heels of this month’s deadly attack in Niger, several key senators told top administration officials on Monday that it’s time for Congress to repeal and replace the president’s long-running war powers.

The comments were directed at Secretary of State Rex Tillerson and Defense Secretary Jim Mattis during an extended Senate Foreign Relations Committee hearing as traction grows for Congress to repeal the war authorizations.

The president’s current war powers were issued in 2001 and 2002 after the 9/11 terrorist attacks when the United States went to war in Afghanistan and Iraq. Less than one-third of the lawmakers in Congress now were involved in those war authorizations, noted a frustrated Sen. Jeff Flake, R-Ariz.

The effort takes direct aim at President Donald Trump’s wide-ranging freedom to order military strikes in the war against terrorism.

“Congress needs to weigh in, we need to make sure our adversaries and our allies and our troops know we speak with one voice,” said Flake, who last week announced he would be leaving his seat in Congress. “We haven’t weighed in, we haven’t said our peace on this. We ought to aspire to be more than a feedback loop.”

Concern over the current war authorizations has been debated for years, but it’s reached fever pitch in recent weeks especially in light of the Oct. 4 Niger ambush that left four American soldiers dead.

A slew of House and Senate members have proposed a variety of approaches to developing a new war authorization. Among them, some lawmakers have said it’s time to replace the president’s war powers with one that has time or geographical limits.

The 2001 and 2002 Authorizations for Use of Military Force, or AUMFs, gave the president wide-ranging powers to direct the military to fight terrorist groups such as al-Qaida, the Taliban and Islamic State around the world. As a result, the military has since operated in more than a dozen countries, members noted.

In May, Flake and Sen. Tim Kaine, D-Va., co-sponsored a bipartisan plan that would replace the current war authorization with a new measure that would end in five years, authorize military engagements against certain terrorist groups and require regular communications from the Pentagon and the president.

“The notion of a generations-long war without Congress weighing in is just untenable,” Kaine said following Monday’s hearing. “A five-year sunset is not an arbitrary termination of U.S. military action any more than a one-year (defense budget bill) is an arbitrary termination of U.S. support for the military. We can come back and make sure we are reviewing so this does not remain the forever war that it is now.”

The Flake and Kaine proposal is now slated to go before the full committee in the next several weeks, Sen. Bob Corker, R-Tenn., chairman of the Senate Foreign Relations Committee, said following Monday night’s three-hour hearing.

“I think the United States Senate has moved closer together on this issue over the last couple of years, rather than farther apart,” Corker said. “So I’m hoping we will be successful.”

Tillerson and Mattis pushed back Monday night on suggestions that the president’s war powers needed to be repealed, or curtailed. They suggested if the current war authorization is repealed, it should be simultaneously replaced by new powers that aren’t on a timetable or region-specific.

Under the Constitution, “Article I gave Congress the right to declare war, Article II, the President to conduct military forces,” Tillerson said. “You can’t fight war by consensus. Someone has to make the hard decisions to win.”

Mattis backed up Tillerson’s comments. He also noted American forces were in Niger under Title 10 of the U.S. Code that provides the legal authority for the military to operate on various missions and not the current AUMFs.

“The 2001 and 2002 AUMFs should not be repealed,” Mattis said. Repealing the current authorization “could only signal to our enemies and our friends that we are backing away from this fight. It would stall our operations, immediately reduce allied commitments and support, and create significant opportunities for our enemies to seize the initiative.”

During a closed session held last week by the Senate Armed Services Committee on the Niger attack, several members emerged with growing questions, and in some cases surprise, over the extent of the U.S. military presence in Africa. The United States has roughly 6,000 troops stationed in Africa.

Sen. John McCain, R-Ariz., chairman of the Senate Armed Services Committee, said after last week’s Niger hearing that the incident has given new momentum to a war authorization repeal.

“We’ve been talking about it for a couple of years,” he said. “This is the kind of a catalyst for an AUMF.”

On Oct. 4, a 40-person patrol that included 12 U.S. soldiers on a mission in Niger came under assault by militants in the southwest region of the country near its border with Mali. The Pentagon has described the potential attackers as a local, self-radicalized group aligned with ISIS.

A fight ensued, resulting in the deaths of Army Staff Sgts. Bryan C. Black, Jeremiah W. Johnson and Dustin Wright. Another soldier killed in the attack, Army Sgt. La David Johnson, was found dead after a nearly 48-hour search.

They were assigned to the 3rd Special Forces Group at Fort Bragg in North Carolina. Two other U.S. soldiers were injured in the ambush and five Nigerien troops were killed.

An investigation into the attack is underway, and could take 30 days before any findings are released, senate members have said.

The Niger attack has also highlighted a counterterrorism war that is shifting under loosened rules of engagement as the fight against ISIS shifts to Africa and other countries, defense hawks have said.

“There’s no doubt. There’s no doubt,” McCain said. “The threat grows.”

Twitter: @cgrisales

Sen. Jeff Flake, R-Ariz., listens to testimony during a Senate Foreign Relations Committee hearing on Capitol Hill on Oct. 30, 2017.

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