Comment: Time for Congress to curtail presidents’ ‘private wars’

By Phil Klay / Special To The Washington Post

The war, supposedly, would be a low-key affair. A few Special Operations troops. Assistance with air power and logistics. Not the sort of thing the American people needed to worry about. It was, as one journalist covering the conflict put it, a “private war.”

In a private war, the professionals make the decisions. Our country’s ignorance meant less meddling from politicians and civilians. But those professionals trudging through the jungles of Vietnam in the winter of 1962 would learn over the next decade that decisions made in a private war can have huge consequences.

It was the consequences of military decisions that happen out of public view that came to mind as I watched last week’s debates in the House of Representatives over the possible repeal of the 2002 Authorization for Use of Military Force (AUMF), which passed in the House and is now heading to the Senate. This might seem to be an obscure bit of congressional wrangling over a redundant piece of legislation. The 2002 AUMF was the legal authorization for the United States to wage war against Saddam Hussein’s regime in Iraq. Proponents of the repeal said it would help reclaim Congress’s constitutional obligation to weigh in on matters of war and peace, while opponents countered that it should be repealed only if there was a replacement ready. Both sides agreed that the 2002 AUMF was “outdated” and that a repeal wouldn’t restrict any current military missions.

A repeal, nevertheless, is a necessary first step in clawing back a congressional role in decisions about how we use our military. Because the 2002 AUMF lacked a clear focus or expiration date, it became one of the main tools presidents have used over the past two decades to justify the expansion of U.S. wars. It gave the executive branch a wider range of authority than was intended at the time. And when Congress gives presidents wide-ranging war powers, presidents tend to use them to pursue their own private wars.

This has been especially true since the second term of the Obama administration, which began our heavy reliance on drones, Special Operations, contractors and airstrikes, none of which seem to be preventing disaster but all of which are very difficult for journalists to cover. Journalists can’t embed with a drone, they’re usually not allowed with special operators, and the regions where we’re killing people tend to be dangerous places to do reporting, as the death toll of journalists over the past decade attests. Back when I was a press officer in the U.S. Marine Corps, my mission statement was to provide “timely, accurate information to Marines and the general public.” Because we worked for the American people, we owed them information about what we were doing. But in today’s close-lipped Department of Defense, touchy about criticism, scarred by an Obama administration that liked to pretend it had ended the wars, and from a Trump administration where a “tweet from God” could radically reshuffle their mission, that sense of obligation is increasingly hard to find.

This is a situation, then, that demands more political accountability from Congress, not less. And yet Congress hasn’t been forced to make any major decisions on this new phase of our wars, thanks in part to two laws: the 2001 and 2002 AUMFs. The 2001 AUMF, passed to go after the Taliban and al-Qaida, has been used to justify 41 operations in 19 countries, many of them operations that mustered almost no public scrutiny. The 2002 AUMF seemed like it was much narrower, passed to “defend the national security of the United States against the continuing threat posed by Iraq.” But long after Hussein’s death, it was cited by the Obama administration as an “alternative statutory authority basis” for its campaign against the Islamic State, and then later expanded by the Trump administration to authorize force against threats to, or stemming from, Iraq in “Syria or elsewhere,” ultimately serving as a legal basis for the assassination of Iranian Maj. Gen. Qasem Soleimani. It’s a nice illustration of how far these authorizations can be stretched that a law passed to allow the United States to strike Hussein was later used to deter Hussein’s main adversary in the region.

That’s why serious accountability for wars overseas will have to begin with the repeal of both laws, the 2001 and 2002 AUMFs, and their replacement with narrower authorizations that specify the enemy, the mission objectives, the geographical limitations and the time when the authorization expires. Otherwise, we’ll continue having wars that don’t simply happen out of the public eye, but also outside of serious congressional scrutiny. In 2017, it took the deaths of four U.S. soldiers in Niger to alert a U.S. senator to the mission, who later told NBC, “I didn’t know there were a thousand troops in Niger.”

And why would he? Sen. Lindsay Graham, R-S.C., may have sat through testimony on our counterterrorism operations in Niger. He might have been in the room that March, seven months before those soldiers died, when Gen. Thomas Waldhauser explained that the command’s intelligence needs weren’t being met, leaving troops dangerously in the dark. But why should Graham have cared? It was a private war, begun at the command of President Obama, using the overbroad powers of the 2001 AUMF. Graham, like the rest of Congress, wouldn’t be held accountable.

Right now, soldiers run risks in complex war zones, while Congress won’t even risk debating and voting on who we should be fighting, where and why we should fight them, what success might look like, and how much it’s going to cost. One opponent of repealing the 2002 AUMF, Rep. Michael McCaul of Texas, the ranking Republican on the House Foreign Affairs Committee, argued that if the repeal went through, “We need to replace this with an updated AUMF that reflects the threats in the region, the current threats, which is Iran.” But that’s actually one of the benefits of repeal. It would reintroduce the question of our conflict with Iran into the broader political process and force our representatives to explain the stakes to their constituents. That basic level of accountability seems like the least we owe ourselves, our soldiers and the residents of the various countries where we’re killing people.

As a nation founded on a healthy skepticism of abusive state power, whose founding documents complain of keeping “Standing Armies without the Consent of our legislatures,” rendering the military “independent of and superior to the Civil Power” and “transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny,” we’re becoming far too like the imperial power we declared revolution against. In a democracy, it shouldn’t matter how much you want a war or how great you think that war will be; if you’re not willing to make your case to the American public and have their representatives vote on it, then you shouldn’t get to throw yourself a war.

Repeal of the 2002 AUMF would hardly change everything that’s wrong with our dysfunctional military policy. Most missions are justified primarily under the 2001 authorization, so repealing the 2002 AUMF is more good “congressional hygiene” than a substantive change, as Rep. Peter Meijer, R-Mich., who served in Iraq with the Army Reserve, told me a few months ago. But it is a good first step. At the very least, as the bill goes to the Senate, it will give us a sense of who cares enough to try

In the early 1960s, soldiers in Vietnam used to complain that their fellow Americans were ignorant of the war there. “With engagement in a private war comes a certain sense of isolation,” wrote the journalist David Halberstam, “a feeling that while it is their war it is not really their country’s war.” Spiraling disaster soon taught Americans better. Private wars don’t always stay private. And in a democracy, we’re not supposed to have them at all.

Phil Klay is a U.S. Marine Corps veteran, a visiting professor at Fairfield University and the author of the novel “Missionaries.”