Checkpoint: Congress Must Play Greater Role In Authorization of Force

Mohammad Bashir Aldaher / EyeEm

The September 11 attack instilled an acute cognizance of international terrorism and the broad extent of its influence; this cognizance framed the subsequent two decades of American foreign policy. The executive branch was promptly granted sweeping retaliatory authority in the wake of the attack, and nine days later, President Bush affirmed before a joint session of Congress that, “Our war on terror… will not end until every terrorist group of global reach has been found, stopped, and defeated.” Analysis of the Afghan state post-withdrawal displays our failures at stymieing terrorist groups in long-term and impactful ways, and ongoing US operations abroad continue to result in significant collateral damage. The Taliban has established itself in a provisional governmental capacity- the unilateral authority granted to the president, therefore, lands itself more in the realm of foreign relations. Congress must have greater jurisdiction in authorizations of force abroad if extended efforts will be sustained against terrorist groups such as the Taliban and other militias.

Twentieth Century Use of Force

Article 1 Section 8 of the Constitution grants Congress sole powers “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” as well as, “to raise and support Armies… to provide and maintain a Navy… to make Rules for the Government and Regulation of the land and naval Forces.” Eleven declarations of war have been sanctioned by Congress, though war has not officially been declared since 1942- meaning every military action abroad since World War II has occurred in nations with whom we were not at war. Twelve military interventions were undertaken between World War II and 9/11- five of which were conflicts of ideology against communist regimes. Efforts under the Regan administration sought to remove Panamanian dictator Manuel Noriega for alleged drug smuggling, and in 1994, US forces occupied Haiti to re-establish the ousted Jean-Bertrand Aristide as president. The 1983 invasion of Grenada, however, is a prime example of post-World War II US foreign policy. 

The United Nations condemned the invasion, stating it constituted “a flagrant violation of international law,” and cautioned the member states of the UN Charter requirements that they:

“refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the principles of the Charter.” 

The State Department first argued that the United States sought to evacuate what President Ronald Reagan cited as “concerns over the 600 U.S. medical students on the island”; however, US forces remained in Grenada after evacuation to depose the Revolutionary Military Council in control of the island. The State Department additionally cited a military aid request from the Organization of Eastern Caribbean States which projected fears of expanding communist influence based on Grenada's relationship with Cuba, citing Grenada’s “extensive military buildup.” Further arguments were made based on unverified requests for support from Grenada's Governor-General, though the US would have decided to invade long before any supposed request arrived. International misconduct by the executive branch has shown its inability to ethically handle unilateral authority in conducting military operations, even at the behest of our allies. Congress must maintain its role in authorizing war and intervention abroad; the absence of such authority has shown to result in gross misuses of force and violations of international law. 

The Threat of Terror

The American post-9/11 desire for reprisal paved the way for the 2001 Authorization for Use of Military Force, granting the president discretion to wield,

“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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

A paper by John Wynne for the New York University Law Review titled After al-Qaida: A Prospective Counterterrorism AUMF states that the 2001 AUMF “authorized the President to use military force against the responsible parties, namely al-Qaida and the Taliban. However, with al-Qaida now diminished, the 2001 AUMF, due to its explicit 9/11 focus, cannot continue to credibly provide the legal foundation for U.S. counterterrorism strategy against threats posed by new terror organizations.” The terror organizations targeted by the executive branch have nonetheless expanded since the initial authorization; further, the list of targets has been deemed classified. The American public is not privy to which particular enemies or nations its military operates against, and thus, such uses of force cannot be considered democratic, nor can it align with a government that derives its legitimacy from the will of the people. Congressional oversight is necessary to ensure that executive action is consistent with the beliefs, interests, and ideals of the electorate. 

Imminent Response

It has been argued that congressional response to individual military actions would be inefficient in responding to the necessary immediacy of terrorist plots- that immediate executive action is required for the military to operate efficiently, perhaps due to their access to sensitive classified information. However, time has shown that access to sensitive intelligence does not always result in the prevention of terrorism. Politico reported the Defense Department had intelligence prior to the suicide attack outside Hamid Karzai Airport; “General Lloyd Austin instructed more than a dozen of the department’s top leaders around the world to make preparations for an imminent ‘mass casualty event.’” Despite “significant” intelligence of a “complex attack,” nearly 200 people, including 13 US service members were killed. The swiftness of unilateral response has shown to be insufficient in protecting American interests. Thus, the argument that congressional approval would hamper the effectiveness of our military is undermined.

Military Diplomacy

In the early hours of January 2020, the Trump administration ordered a drone strike assassinating Iranian Major General Qasem Soleimani along with deputy commander of Iraq’s Popular Mobilization Forces Abu Mahdi al-Mohandes. The Trump administration claimed Soleimani was “responsible for the deaths of hundreds of American and coalition service members and the wounding of thousands more” and claimed the strike would “deter future Iranian attack plans.” In response to the attack, Ayatollah Ali Khamenei, Supreme Leader of Iran warned that “a harsh retaliation is waiting.” A UN investigator condemned the strike as "unlawful and arbitrary under international law,” arguing the United States presented no proof of its intelligence that Soleimani was “actively plotting” to “take big action … that would have put hundreds of lives at risk.” While the Trump administration claimed that such action sought to remove “imminent threats to American lives,” the strike undermined US foreign policy positions in the region and flouted international diplomacy.  

While the Biden administration elected to withdraw from Afghanistan, it has not precluded itself from unilateral use of force. In response to the attack on Hamid Karzai, Biden proclaimed, “We will not forgive. We will not forget. We will hunt you down and make you pay,”- consonant with Bush’s sentiments before the joint Congress, where he stated, “I will not forget the wound to our country and those who inflicted it. I will not yield, I will not rest, I will not relent.” The Biden administration answered with drone strikes in the region, one such strike targeting a vehicle alleged to be transporting ISIS-K fighters- though New York Times and Post investigations claim the car was driven by “Zemari Ahmadi, an engineer working for the U.S. aid group Nutrition and Education International, which aims to eliminate malnutrition in Afghanistan.” The strike killed ten people, seven of whom were children. When broad military authority is granted to the executive branch, it culminates in gross violations of international law and unnecessary collateral damage. Congress must play a greater role in the authorization of force if we are going to maintain a foreign presence that aligns with American ideals.

In the wake of the US withdrawal from Afghanistan, the Taliban swept through the region, effectively establishing provisional governance in place of the US-backed government. Further drone strikes on terrorists in the region thus require an analysis of what constitutes a terrorist. The FBI defines international terrorism as, “violent, criminal acts committed by individuals and/or groups who are inspired by, or associated with, designated foreign terrorist organizations or nations (state-sponsored),” and the State Department has designated the Taliban a terrorist organization since 2010. In the wake of evacuation efforts in the region, the State Department claimed to have “received assurances from the Taliban that all foreign nationals and any Afghan citizen… will be allowed to proceed in a safe and orderly manner to points of departure and travel outside the country.” Where efforts began in Afghanistan as anti-terrorist efforts, the bounds have crossed into foreign relations.

The Senate Committee on Foreign Relations and House Committee on Foreign Affairs exist to oversee international efforts such as “foreign assistance… national security developments affecting foreign policy; strategic planning and agreements; war powers, treaties, executive agreements, and the deployment and use of United States Armed Forces.” Where unilateral executive military authority has shown to be an engine for assassination and collateral damage, oversight from such governmental authority would allow the American government a greater role in preventing such ethical violations abroad. In addition, classification statuses have been used to hide unethical military activity, as with Chelsea Manning’s 2010 leak of journalists killed in a Baghdad airstrike. If congressional authorization processes and classification systems must be streamlined and improved in order to accommodate more effective oversight, it does not undo the apparent ethical necessity for bilateral authorization of military action between the executive and legislative branches.

Homeland Terrorism

When analyzing the effectiveness of US military intervention abroad, one must consider the long-term efficacy of such a potent force. The modern American ethos typically categorizes terrorism as a foreign threat to national security. Where rapid unilateral military response serves to undermine terrorism abroad, New America reported that “while a range of citizenship statuses are represented, every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident except one who was in the United States as part of the U.S.-Saudi military training partnership.” A 2011 study from Pew Research states that “among American Muslims, 20% are converts to Islam, saying they have not always been Muslim,” and New America notes that “A large proportion of jihadists in the United States since 9/11 have been converts.” These studies together imply that disaffected Americans are a greater terrorist threat to the US homeland than foreign militias. Attention should be redirected to economic and social factors which leave citizens feeling alienated and precipitate such animosity.

United Nations Multilateralism

If the United States is going to participate on the international stage, it must adhere to international law. The US was instrumental in establishing the United Nations- to violate its statutes, therefore, would be the height of hypocrisy. Article 6 of the UN Charter states that “a Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization,” and the charter’s preamble states its purpose is “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Peacekeeping and humanitarian aid are fundamental aspects of US foreign policy, and Article 1 of the charter requires member states “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Executive unilateralism is shown to work directly counter to these means. 

Conclusion

Polling conducted by the Chicago Council on Global Affairs found seventy percent of Americans supported the withdrawal from Afghanistan by a September 11 deadline, and nearly a decade before, polling suggested fifty-three percent of Americans believe the US "made a mistake sending troops to fight in Iraq." In 2013 President Obama announced an end to the “Global War on Terror,” and yet it is only a decade later that we are seeing a full withdrawal of troops from Afghanistan. Even after the military completed its withdrawal, drone warfare continues to undermine the United States’ role as a leader of a peaceful global society and result in mass collateral damage. Wynne states that “other legal options fail either to restrain unilateral executive branch action or to legitimize the use of force.” Unilateral executive military authority has been shown to do more harm than good and undermines the will of the electorate. Greater congressional authorization is an ethical necessity to ensure that the American public is fully aware of the extent of its nation’s military operation abroad while ensuring that uses of force do not constitute or result in violations of international law or human rights abroad.