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The War in Mali: What's at Stake for Congressional War Powers?
Submitted by Robert Naiman on 24 January 2013 - 12:31pm
France has launched a major military intervention in Mali. The U.S. is supporting the French intervention politically and to some extent, militarily. According to press reports in the Los Angeles Times ["Mali conflict exposes White House-Pentagon split," Jan. 18] and the Washington Post [“U.S. weighs military aid for France in Mali,”, Jan. 16], to what degree the U.S. should support the French intervention militarily has been a cause of dispute between the Pentagon and the White House, with the Pentagon advocating for greater U.S. military action and the White House resisting a direct role in combat.
To date, according to press reports, the U.S. has supported the French with intelligence, communications, and transportation, but has not decided to send armed drones to Mali; it has been reported that plans for sending armed drones were being reviewed [“U.S. weighs military aid for France in Mali,” Jan. 16].
If the Administration were to carry out drone strikes in Mali without Congressional authorization, that would have significant implications for Congressional war powers.
There was significant, bipartisan opposition in the House to the decision by the Administration to intervene militarily in Libya without Congressional authorization. The Administration argued then that the War Powers Resolution was not triggered because the U.S. did not have uniformed troops on the ground and was not engaged in major military operations. Members of the House were extremely skeptical of this argument, and passed language registering their disapproval.
If the Administration now were to conduct air strikes in Mali - through drones or other means - the situation would be quite analogous to Libya. Congress has not authorized military action. There is a Security Council resolution, but Congress has never accepted the idea that a Security Council resolution replaces the need for Congressional authorization, absent an attack on the U.S. or its forces. The language of the War Powers Resolution is clear on this point.
If the Administration were to conduct drone strikes or other air strikes in Mali now without Congressional authorization, there would only be one way for the Administration to claim that it is not like Libya in terms of its implications for Congressional war powers, and that would be to claim that the military action is authorized under the 2001 Authorization for the Use of Military Force that Congress passed after the September 11 attacks, which authorized the President to target those responsible for the attacks and those who harbored them.
But this would be an extremely controversial move, because the application of the 2001 AUMF to Pakistan, Yemen, and Somalia is already hotly contested, and according to the statements of Administration officials there is no clear link between insurgents in Mali and Al Qaeda leadership in Afghanistan or Pakistan, nor do insurgents in Mali threaten the United States ["Mali conflict exposes White House-Pentagon split," Jan. 18]. If the Administration were to cite the 2001 AUMF as justification for air strikes in Mali without Congressional agreement, it would amount to a unilateral broadening of the 2001 AUMF by the Administration.
Indeed, on November 1, the Washington Post editorial board, which supports drone strikes in Pakistan, Yemen, and Somalia, and claims that they are legal under the 2001 AUMF, specifically rejected the idea of extending the 2001 AUMF to Mali in order to carry out drone strikes there. The Post wrote ["Pulling the U.S. drone war out of the shadows," Nov. 1]:
“The further — in geography, time and organizational connection — that the drone war advances from the original al-Qaeda target in Afghanistan, the less validity it has under the 2001 congressional authorization. . . . [M]ost of the world is unlikely to accept an argument that the Sept. 11, 2001, attacks justify drone strikes more than a decade later in Northern Africa.”
In the wake of the Libya intervention and the failure of the Administration to seek Congressional authorization for that, there is a widespread belief that Congressional war powers have been eviscerated. This is a perception that Members of Congress should welcome a good opportunity to address. Historically, the track record of disputes between Congress and the Executive Branch over war powers overwhelmingly suggests that Congress has the war powers that it asserts.
The present situation gives Congress a good opportunity to re-assert its war powers, because by insisting that the Administration not engage in air strikes in Mali without Congressional authorization, Congress would be buttressing the White House's caution. The intervention is already under way, being led by France, and is likely to proceed in some form regardless of the degree of U.S. military participation. What is at stake is the degree of U.S. military participation. There is no emergency requiring an immediate decision by the Administration on whether to escalate U.S. military involvement. This is an ideal opportunity for Members of Congress to weigh in on behalf of the idea that Congress should have a say.