Airstrikes raise war powers questions as Senate debates repeal of 2002 authorization

Lawmakers are raising questions about the Biden administration’s unilateral decision to strike Iranian-backed militia targets in Iraq and Syria over the weekend as Congress eyes repealing several standing war authorizations.  

The administration cited executive War Powers under Article II of the Constitution for Sunday’s strikes as its sole domestic authority, straying from previous administrations’ tendency to lean on the 2002 Authorization for Use of Military Force for similar strikes. The action has exposed the limits of unchecked executive war powers.

“There is no doubt that President Biden possesses the ability to defend our forces abroad, and I continue to trust inherently the national security instincts of this White House,” said Sen. Chris Murphy, Connecticut Democrat.

He said he’s concerned “that the pace of activity directed at U.S. forces and the repeated retaliatory strikes against Iranian proxy forces are starting to look like what would qualify as a pattern of hostilities under the War Powers Act.”

“Both the Constitution and the War Powers Act require the president to come to Congress for a war declaration under these circumstances,” Mr. Murphy said.

The administration also strayed from the 2002 AUMF as the authority for similar strikes in February.

Looming in the debate is the Senate’s consideration to repeal the 2002 Authorization for Use of Military Force against Iraq, following the House’s 268-161 vote to repeal the authorization earlier this month. Some observers say the AUMF may be further called into question following the Syria strikes.

“It definitely is going to impact, in my opinion, the conversation over whether or not the 2002 Iraq Authorization will sunset,” said Director of Fordham Law School’s Center of National Security Karen Greenberg.  

The measure passed by the House to repeal the 2002 AUMF was largely seen as a stand against the perpetual war footing that some argue the U.S. has been on since the invasion of Iraq in 2003. After the official end to the Iraq war in 2011, both the Obama and Trump administrations cited the authorization in engagements that many said it was not designed for.

“The Iraq War has been over for nearly a decade. The authorization passed in 2002 is no longer necessary in 2021,” said Senate Majority Leader Charles E. Schumer.

The Biden administration also supports its repeal.

“The president is committed to working with Congress to ensure that outdated authorizations for the use of military force are replaced with narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats,” the White House said.

But even those who supported the repeal because the authorization is out of date argue that Congress should maintain its check over executive war powers.

“This constant cycle of violence and retribution is a failed policy and will not make us any safer,” tweeted Rep. Ilhan Omar, Minnesota Democrat. “Congress has authority over War Powers and should be consulted before any escalation.”

Critics warn that key details need to be sorted out and codified in a new authorization before the 2002 AUMF is repealed.

“The legal and practical application of 2002 [authorization] extends far beyond the defeat of Saddam Hussein’s regime,” said Senate Minority Leader Mitch McConnell, Kentucky Republican, who is opposing the repeal efforts. “Tossing it aside without answering real questions about our own efforts in the region is reckless.”

Rep. Dan Crenshaw, Texas Republican, said he agrees that the authorizations should be updated, but he voted against the measure because the administration would be limited in its ability to prevent attacks in the region and target Iranian networks that continue to thrive.

Key questions remain as to how the Syria strikes will impact the Senate’s vote on the repeal.

Last week, Senate Foreign Relations Committee Chairman Robert Menendez, New Jersey Democrat, said he would delay the committee’s review of a Senate resolution to repeal the AUMF after Republican committee members requested public and classified hearings on the bill, including testimony from the Defense and State departments and the intelligence community.

“We should fully evaluate the conditions on the ground, the implications … and how adversaries — including ISIS and Iranian backed militia groups — would react,” the senators wrote in a letter to Mr. Menendez. “It is also important to consider the policy and potential legal consequences of our reduced presence in the region and the impending withdrawal of forces from Afghanistan.”

The Senate Foreign Relations Committee review will need to occur before the bill goes to the Senate floor for a vote.

In a statement following the strikes, Mr. Menendez said he welcomes further information from the administration regarding this weekend’s attacks as his committee begins considering the appeal.

“I will be seeking more information from the administration in the coming days regarding what specifically predicated these strikes, any imminent threats they believed they were acting against, and more details on the legal authority the administration relied upon,” Mr. Menendez said. “Congress has the power to authorize the use of military force and declarations of war, and the Senate Foreign Relations Committee is planning to hear from the Administration more on these strikes as well as have a broader discussion on the 2002 AUMF when we return to Washington, D.C.”

Ms. Greenberg says this weekend’s strikes have exposed a gap that the 2002 AUMF had long filled, for better or worse.

“We’re in this gray area,” said Ms. Greenberg. “The gray area just expanded a little bit between war and not war. What’s the difference between simmering hostilities, which involve training, bombs and war? What does cross the line into that? And what the authorization did was make us not have to answer that question.”

For some, the strikes highlight the need to put in place a clear, up-to-date authorization that applies to the current geopolitical situation, rather than that of almost two decades ago.

“This was a conversation that we needed to have anyway,” Ms. Greenberg said. “And these strikes both in February and now are bringing it into sort of clearer relief. There has to be an agreement between the executive and the Congress about where the War Powers Act needs to kick in, and when Congress has to be part of the decision to use force.”