Matters of war in the new era

With the news that Donald Trump has just sought options to strike nuclear facilities in Iran, we should be reminded that one issue must rank near the top of the agenda for the next Congress, and it is to restore the role of the legislative branch in the use of American military force abroad. There have been insufficient checks on the president for decades.

This is not a partisan issue. While Trump caused many angst, thanks to his impulsive and disruptive action, it makes little sense to give any one man or woman the power to take this great country to war alone, especially in the nuclear age. Yet it is precisely in the nuclear age since 1945 when we have lost our sense of checks and balances that the founders believed to be essential for the country which they sought to build.

Under Article One of the Constitution, it is only Congress that can declare war, raise armies, maintain navies, and otherwise appropriate the funds to our national defense. The president, by contrast, is commander in chief of the military. Under this system, both branches have critical duties. Further, neither can wage war by their own desire and decision.

Congress has done rather well with its budgetary duties since then. Yet it has not declared war since 1941, and it has not even formally approved, in any meaningful alternative way, several of the major conflicts the country has engaged on since then, notably the Korean War, the Vietnam War, the Kosovo War, and the military intervention in Libya. This is an abdication of the responsibility of the legislative branch. Perhaps it is not a coincidence that a number of such conflicts did not turn out so well.

The stakes could be even higher moving forward, perhaps against those adversaries with nuclear weapons. Congress needs a stronger role in any possible war against North Korea, Russia, or China, heaven forbid that we would have to wage this kind of conflict. Those effects of any such use of force could be much more dire than those of the 21st century, like Iraq to Afghanistan and more of the Central Command theater.

For a decision that could have existential ramifications for the country, the legislative branch of government has to play the critical role in advance of any decisions to initiate hostilities. The United States cannot tie the hands of this or any future commander in chief in a way that could leave us even temporarily without defense, but that does not mean the president should have a blank check. Congress needs to make changes.

First, revise the authorization for use of military force legislation of 2001. This is all we have for military operations from Iraq to Syria and Yemen to Somalia and Afghanistan and further. For two decades, it has never been revised or even reauthorized. It targeted perpetrators of the 9/11 attacks who were extremists under the Al Qaeda banner and their associates. It does not even speak to the situation with Iran. But this is also a problem because the American people remain disconnected from the wars they have been sending men and women to fight over time.

A new authorization for use of military force should not be indefinite. It might span five years, for instance, after which another would then be needed. However, in the event that Congress may fail to replace it, the former legislation could remain in effect so as not to leave the country without defense in the event of gridlock in Washington.

A new law has to mandate that the director of national intelligence certify that new terrorist groups have ideology or members that are related to Al Qaeda or clear violent extremism before a president was entitled to strike it. That would prevent a president from using the authorization for use of military force for entirely different purposes than its original intent, while allowing flexibility should new terrorist groups splinter off from old ones or simply change their names to avoid being targeted.

Second, the War Powers Act of the Vietnam era should be rewritten. That current law allows the president free rein for 60 days before support from Congress for further action is necessary. But absent an acute threat to the country, for any operation the United States initiates, that number should instead be zero. Authorization before any attack has to be mandated, and if Congress has the opportunity and fails to vote up or down, a president might be granted some authority to take limited action, but that outcome should be decidedly frowned on for the rewritten law.

Third, secure more checks and balances to future use of nuclear weapons, save for the event of clear danger to the country when an enemy attack is imminent or underway. Richard Betts and Matthew Waxman recommend a mandate that the defense secretary and attorney general both certify any decision to use nuclear weapons. One might consider an extension of this new mandate to the leaders of chambers of Congress.

Their role would not be to rethink the entire decision. It would rather be to ensure that it has a foundation in the law and that no nuclear war could be launched just out of the blue. Because of the tightening of the War Powers Act, Congress would need to approve any decision to go to war in the first place, with any types of weapons, unless the president were taking action for an immediate attack and obvious national defense.

Forever wars in the Middle East are already bad enough. Nuclear wars or other conflicts with weapons of mass destruction could be much worse. Republicans and Democrats can come together for this because it is not about bolstering or weakening either party at this moment, but honoring and respecting what our founders knew when they built a country based on institutions and laws rather than individuals. Over no single issue was their desire to avoid excess concentration of power within any branch of government more critical than that of war and peace.

Amy McGrath is a retired lieutenant colonel in the United States Marines Corps and was the Democratic candidate from Kentucky for the Senate. Michael O’Hanlon is a senior policy fellow with the Brookings Institution.