INDIANAPOLIS — U.S. Sen. Todd Young, R-Ind., believes the American people, through their representatives in Congress, should debate and decide whether to recommit the United States to a global war on terrorism that already has lasted more than 16 years.
The Naval Academy graduate and Marine veteran is among a handful of senators calling for Congress to adopt a new authorization for use of military force, or AUMF, specifically targeting ISIS and its associated forces, as well as continuing the fight against al-Qaeda and the Taliban.
Young contends that the 2001 AUMF approved following the Sept. 11 terror attacks and the 2002 authorization for war against Saddam Hussein's regime in Iraq "don't apply" to ISIS, "or now have a highly attenuated application to the current circumstances."
"Article 1, Section 8 of the Constitution clearly states that Congress has the power 'to declare war,' " Young said.
"Yet, (three) years after the U.S. began bombing ISIS — and with thousands of Americans already on the ground in Iraq and Syria — Congress has failed to exercise this fundamental Constitutional responsibility."
New AUMF not needed?
Questioned last week by members of the Senate Foreign Relations Committee, including Young, Defense Secretary James Mattis and Secretary of State Rex Tillerson argued the prior AUMFs are sufficient legal grounds to take the war on terrorism to new targets.
For example, Mattis said even though ISIS did not exist on 9/11, and its leaders have denied any alliance with al-Qaeda, ISIS remains ripe for targeting by the United States because many of its members at one time belonged to al-Qaeda in Iraq, and the groups share similar ideologies.
"What we've seen is these groups come apart and go back together, they change their names as often as a rock 'n roll band," Mattis said.
"When the same group in the same area seems to be spawning from the same people, a disavowal is something of interest, but it's not necessarily compelling."
Mattis suggested that ISIS, in fact, is taking advantage of certain restrictions in U.S. law to continue operating with a reduced fear of attack by American forces.
"We call it 'law-fare,' where they actually use our laws against us," Mattis said. "We've seen it, we read their mail, we know what they're thinking in many cases."
Young was not persuaded.
He sees a growing litigation risk to the Trump administration if it continues targeting new enemies while relying on legal justification from a period of time "in which a previous Congress, working with a previous commander-in-chief, passed an AUMF."
"I believe it is long past time for Congress to consider and pass an AUMF against ISIS and send a clear message to our troops in harm’s way that we support them and have their backs," Young said.
Not just a legal issue
Beyond the legal particulars, Young also favors a new AUMF, because the Constitution demands Congress play a decisive role in the decision to go to war, and not merely rubber-stamp decisions made by the president.
The senator declared last year within hours of winning election that one of the top priorities of his six-year term is to restore the primacy of the legislative branch of government — "the people's branch" — and stop delegating so many powers to the executive branch.
"There is little doubt that the president has the authority to utilize military force in short-term cases of immediate national emergency," Young said.
"But no reasonable definition of such an instance could or should include the engagement of U.S. military forces in protracted hostilities in foreign countries absent a declaration of war or authorization of Congress."
In 2015, Democratic President Barack Obama asked the Republican-controlled Congress for a new AUMF specifically targeting ISIS.
He did not get it.
In any case, Obama claimed, similar to the current Republican administration, that the 2001 and 2002 authorizations covered U.S. bombings of ISIS targets in Syria and elsewhere — a belief Young does not share.
"When one considers the courage and sacrifice of our service members and their families, the case for congressional action and an AUMF focused on ISIS seems even clearer," Young said.
Hammering out the authorization
Young has filed Senate Joint Resolution 31, which would authorize the president, with the consent of Congress, to continue the war on terrorism, including the fight against ISIS, with no time or geographic restrictions and no lapse while the new AUMF takes effect.
His plan also would require the president to present Congress a comprehensive strategy for defeating ISIS, as well as reports every 60 days detailing all military actions the president permitted under the terms of the AUMF.
"I am ready to roll up my sleeves, analyze the Trump administration’s new plan and take tough votes," Young said. "That is what my constituents expect, the Constitution demands and our troops deserve."
Other senators are not quite on board with Young's proposal to effectively give the White House carte blanche to continue the war on terrorism anywhere in the world for an unlimited period of time, especially following the recent deaths of four U.S. soldiers in Niger, an African nation that some in Congress said they didn't know had American troops stationed there.
U.S. Sen. Tim Kaine, D-Va., and U.S. Sen. Jeff Flake, R-Ariz., have proposed a new AUMF that explicitly includes ISIS, but which also limits action to Afghanistan, Iraq, Syria, Somalia, Libya or Yemen, unless the president tells Congress it is "necessary and appropriate" to take the fighting elsewhere and Congress declines to stop the president from doing so.
In addition, the Kaine-Flake AUMF would sunset in five years, forcing Congress to again consider whether U.S. troops should continue to be deployed around the world against terrorist targets.
"Of all the powers Congress has, the one that we should most jealously guard is the power to declare war," Kaine said.
There is, however, no timetable, or particular urgency, for legislative action on a new AUMF, since the administration has said it intends to continue overseas military operations using existing authorities.