In recent days, leading lawmakers in both parties have been talking tough about forcing the Obama administration to devise and then reveal its strategy to “degrade and destroy” ISIS, as President Obama has promised. There have been public calls for hearings and votes on whether Congress should formally give Obama the authority to do what he’s already doing in Iraq and what he might soon want to do in Syria.
But behind the scenes, there’s no clear plan for Congress to exert its will or even make its wishes known. Lawmakers, staffers, and officials told The Daily Beast that the administration’s refusal to tell anyone its strategy and work with Congress on a bill to authorize military action means the task of passing such a bill is a Sisyphean effort likely to fail. The Hill may not even be able to muster a vote, they say.
“Members will certainly have discussions about the path forward on [ISIS] when they return next week, but how could Congress vote to authorize some action when the president hasn’t even made a compelling case to the American people about what our national objective and strategy should be?” a senior House GOP aide told The Daily Beast.
There’s widespread frustration in both chambers and both parties about President Obama’s admission that “we don’t have a strategy yet” to deal with ISIS in Iraq and Syria. But now the lack of strategy is actually protecting Obama from oversight because Congress can’t authorize or reject what it can’t understand.
In fact, the White House has been totally mum on how it plans to legally justify the air war in Iraq after the temporary authority granted to it in the War Powers Resolution expires. According to the 1973 law, the president must report to Congress when he uses U.S. military force in a hostile environment; Congress must then specifically authorize such action within 60 days or the president has to stop. The president can invoke a one-time, 30-day extension.
But, so far, there have been no substantial consultations with Congress about such an authorization. The White House declined to say whether it even cared if Congress acts or not.
“The administration will continue to consult with the Congress on the way forward in Iraq and our efforts against [ISIS], and we will continue to provide appropriate reports to the Congress consistent with the War Powers Resolution. Beyond that, I don’t have anything to announce. Thanks!” Caitlin Hayden, press secretary for the National Security Council, told The Daily Beast.
The administration has now reported to Congress three times under the War Powers Resolution about U.S. military force in Iraq; the first report was filed Aug. 8 and the most recent was filed Sept. 1. The reports notified Congress that the U.S. was waging war in Iraq for four distinct reasons: to protect American personnel in Erbil; to save the Yazidi minorities trapped on Mount Sinjar; to protect the Mosul Dam; and to save the people of the Shiite town of Amirli.
The War Powers clock expires Oct. 8, with a possible extension to Nov. 8. But the administration could argue that each new notification resets the clock and gives the president ongoing authority to attack in Iraq. To most in Congress, that’s disingenuous at best, because the strikes are all part of the same operation and are all against the same foe in the same country.
“It’s called the War Powers Act, not the Single Attack Powers Act. Technically you are not restarting the 60-day clock,” said a senior Senate aide involved in the debate.
During Obama’s war on Libya in 2011, he used military strikes well past the 60- or even 90-day deadline. Then he tried to claim there were no “hostilities” in Libya, to nullify the War Powers Resolution. This time around, Obama’s lawyers were more clever.
“The Libya episode taught him the lesson you can trust on 60 to 90 days, so instead they are trying to press the reset button on the clock,” the aide said. “In the end, the administration wants to hang this on the president’s authority under Article 2 (of the Constitution). The problem is, some of these strikes don’t fall under Article 2.”
“It’s a legal shell game,” a senior GOP senate aide said. “But more than that, it’s an ad hoc reaction to a threat. And so, the legal rationale that flows from that is minimal because what he’s doing is minimal.”
There’s a growing consensus in both parties that the president has to do more to combat the growing ISIS threat and come to Congress for some kind of legal endorsement. Even GOP doves like Sen. Rand Paul have changed their tune recently and pledged to grant Obama permission to strike the terror group.
“I think we all agree that having a national strategy for defeating the Islamic terrorist state is imperative,” House Speaker John Boehner told his caucus on a conference call Wednesday, according to a source on the call. “America is at risk of another 9/11 unless we confront and defeat this terrorist threat. The safety and security of the American people, and that of our allies, is at stake.”
But with only two weeks in September to legislate, there’s little to no chance Congress will act before its next recess, which means the issue will be punted to the post-election lame duck session. During that session, several senators will try to add amendments authorizing Obama’s ISIS war to the National Defense Authorization Act—the bill that sets policies for the Pentagon—which is seen on Capitol Hill as a must-pass.
Sen. Jim Inhofe, the top Republican on the Senate Armed Services Committee, has drafted legislation that would authorize the president to use military force against ISIS, and is conferring with Senate colleagues about what changes would be required to gather bipartisan support.
"The only way to get the House to change their mind would be either the Senate sends a strong bipartisan message by passing an AUMF [Authorization of Military Force], or by passing an amendment to the NDAA," said Donelle Harder, an Inhofe aide.
Senator Bill Nelson, a Florida Democrat, has also drafted legislation that would specifically authorize Obama to strike ISIS inside Syria, where Florida-born journalist Steven Sotloff was murdered this week. Nelson wants to add his legislation to the Defense Authorization bill as well, his spokesman Ryan Brown said.
“This will ensure there’s no question that the president has the legal authority he needs to use airstrikes in Syria,” Nelson said in a statement Wednesday. “Let there be no doubt, we must go after ISIS right away because the U.S. is the only one that can put together a coalition to stop this group that’s intent on barbaric cruelty.”
Senate Foreign Relations heads Bob Menendez and Bob Corker are sure to want to fight for jurisdiction over any authorization of military force, which would traditionally fall under their committee. But they haven’t weighed in yet. For a long time, they have been trying to repeal and replace the original 2001 AUMF that authorizes the president to go after al Qaeda. That effort could potentially be connected to the ISIS war. But for now, the path forward is uncertain.
Menendez and Corker are trying to schedule a hearing on Iraq this month with Secretary of State John Kerry. Earlier this year, Kerry cancelled scheduled appearances before his old committee multiple times and there is still bad blood over what senators felt was disrespect on Kerry’s part.
Many lawmakers still feel burned from the episode last year when Obama pushed them to vote for a strike against Syria, only to cancel the strike last minute and leave them hanging. For some, weighing in on Obama’s ISIS war now would just give the president political cover for a policy they think is incomplete, striking ISIS one truck at a time in Iraq and ignoring them in Syria. If senators vote for that, they would be agreeing to share the blame if and when that strategy fails.
“If you are going to come to Congress, come to Congress to ask for a real authority to take on something that is a direct threat to the national interests of the United States and link that authority to an overall strategy. You could get congressional support or something like that,” said another senior GOP Senate aide. “The president has to be the prime mover. He has to come to Congress and say, ‘Look, guys, here’s what we need to do and here’s what we need to do it.’ And that hasn’t happened yet.”
— with additional reporting by Tim Mak