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.

But it is a mistake for Obama to continue down the path of unilateral decision-making blazed by President Bush. This will only undermine the democratic legitimacy of the entire effort. Congress can and should design a way to participate constructively in these crucial decisions. It should repeal the open-ended 2001 resolution and authorize Obama's 18-month surge through a new mechanism for ensuring the ongoing democratic legitimacy of limited wars.

Under the reform we envision, the House and Senate would change their rules for authorizing and funding wars. The new rules should state that any authorization of military force will specify the term during which it may lawfully continue before triggering further congressional review. The choice of the expiration date is entirely up to the House and Senate—it could be a year, or two, or 10. Or Congress could explicitly authorize an unlimited engagement. But if Congress's authorization is silent on the matter, a two-year period would be presumed. After that, the war-making authorization would expire unless Congress extended it. The president could ask to continue the limited war, but Congress would have to expressly agree. The House and Senate should back up the time limit by passing procedural rules that prohibit all future war appropriations after the deadline, except for money needed to wind down the mission over one year.

This structure would require presidents to be honest with Congress and the American people when asking them to commit troops abroad. If a mission will realistically take a decade, the president and his advisers will have to say so or return to Congress every two years for approval. And if they get it wrong about how long a war will take, they will also have to go back to Congress and explain how long we should continue the fight.

Our proposed reforms would not infringe on the president's constitutional role as commander in chief. Since the earliest days of the republic, the Supreme Court has established that Congress has the constitutional power to limit a war's "nature and extent." If Congress authorizes an invasion of Iraq, the commander in chief can't choose to invade Iran instead; nor can he continue the fight for 10 years if Congress has allowed only 10 months. Our proposal falls easily within this centuries-old understanding of congressional power.

It is also feasible. The Constitution gives each House "the power to determine its rules of proceeding." This means that either the Senate or the House can immediately change its rules on war authorization and funding to assert control over limited wars. The president might not like it, but he cannot veto changes in the way Congress does business. At the same time, skeptical Democrats would find it much easier to support the president's surge if they could guarantee effective oversight over the next phase of the war effort. That's good for him, good for the American people, and good for democratic control over limited wars in the future. A triple win.

Bruce Ackerman and Oona Hathaway are professors of law at Yale.

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