What Congress should do about the war in Afghanistan.

The law, lawyers, and the court.
Dec. 9 2009 5:48 PM

What Will Congress Do About Afghanistan?

Lawmakers should set new rules now for asserting their war powers later.

President Obama's Afghan initiative represents a new kind of American war, one that shatters the existing constitutional framework. Our tradition divides America's wars into two categories: unlimited wars (World War II) and momentary interventions (Grenada). But Afghanistan fits into neither of these neat boxes. It is of limited duration and purpose, but far from momentary—we will call it a limited war. As such, it challenges the conventional way in which the president and Congress have shared power during the modern era. And so the war in Afghanistan is a reason for Congress to change the way it handles war and peace. While it should approve Obama's 18-month surge, Congress should take steps to guarantee that it will have an equal say when the time comes to make the fateful decision about what happens next as the president's deadline approaches.

Since World War II, the notion of a truly unlimited war has increasingly come under pressure. While Korea, Vietnam, or the two Gulf Wars were clearly different from Grenada, they weren't total wars like the struggle against Nazism. Nonetheless, the War Powers Resolution, passed in the wake of Vietnam, continued to suppose that wars came in only two sizes. It distinguished between very short-term interventions and the rest. The resolution authorized the president to make brief interventions abroad unilaterally—giving him 60 days to use military force without legislative approval. But the president had to go to Congress for explicit authorization during this period if he wanted to sustain his offensive for any battle that lasted longer.

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Obama's plan for Afghanistan fits neither of these categories. Unlike a momentary intervention, it contemplates a sustained period of military escalation that will last much longer than 60 days. But unlike a truly unlimited war, the plan comes with an 18 month sunset provision from the outset—at which time we will have reached another crucial decision point. This commitment to fight within defined boundaries specified at the beginning is the hallmark of limited war. It raises a key constitutional question: Should Congress assert itself now so that it is clearly established as the president's partner when we return to the issue in 18 months?

As we move closer to July 2011, Congress might think it wise to exit quickly, or slowly, or even to reject the exit plan and continue fighting for another limited period. Given its constitutional responsibilities over war and peace, it should take steps now to make sure that it won't be a presidential rubber-stamp. This is precisely what will happen unless Congress changes the way it does business. Under the current system, we will just see a repeat of the current show in a year and a half. Once again, the president will consult with his advisers, announce his decision unilaterally and then send the generals to Capitol Hill to confront Congress with a fait accompli: "Appropriate the money we need, or the blood of American troops will be on your hands."

Obama didn't create this situation. He inherited it. Congress passed the authorization for the war in Afghanistan in the days after the Sept. 11 attacks. Acting consistently with the War Powers Resolution, it gave the president open-ended authority to "use all necessary and appropriate force against nations," like Afghanistan, where al-Qaida remains active. Eight years later, this resolution gives the president the legal authority to act on his own.

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