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Flake, Kaine urge Congress to reclaim power to OK military action

WASHINGTON – Congress has been too willing to cede its constitutional authority to approve the use of military forces and it’s time to take that responsibility back, Sens. Jeff Flake and Tim Kaine said Wednesday.

Flake, an Arizona Republican, and Kaine, a Virginia Democrat, said bills from 2001 and 2002 that authorized the use of military force have become “zombie” authorizations, repeatedly used by presidents in situations the original measures did not envision.

The two are again sponsoring a bill that, while it would not halt any current military action, would make clear that future authorizations are not open-ended and would expand the law to let Congress approve strikes against “non-state actors” like ISIS.

Presidents, Democrat or Republican, will “take any power you can give them,” said Flake. Despite the continuance of “war activities” under the previous authorizations for use of military force – or AUMFs – Flake said 70 percent of Congress was not in office when they were approved and has not had a chance to vote on the authorization of war powers.

“That’s simply not right,” he said.

Kaine said President Donald Trump did not inform members of Congress before launching missile strikes against Syria in April, and that a request for permission and legal justification are yet to come.

Article 1 of the Constitution outlines congressional powers including the ability to declare war. Kaine said the bill he and Flake have proposed would not overwrite this power, but simply remind both branches of government the separation of power.

The senators said they are not out to strip the president of any powers, merely to rein powers that successive administrations have overused.

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Flake said “the onus is on the president” to come to Congress with a plan, as much as it is on lawmakers to act.

“It would be ideal for the administration to offer language up and for us to massage it,” he said.

But Flake did not let Congress off the hook, either, noting that lawmakers have been too quick to blame the president for his military actions when they have always had the power to take it away – and haven’t.

Flake and Kaine worry that the changing nature of adversaries in modern warfare leaves the U.S. without legal justification to attack non-state entities that target it, such as terror groups. Those include the Islamic State, al Qaeda and Boko Haram, among others.

Kaine said military leaders predict the U.S. will mostly engage non-state actors instead of sovereign nations in future conflicts. While the 2001 AUMF allows action against anyone responsible for the 9/11 attacks, it would not cover the Islamic State, which was formed in 2003.

Kaine proposed three requirements should be met before the U.S. takes action against a non-state actor: The group is affiliated or pledges allegiance to a recognized terror organization; it plans to or has attacked the U.S.; the president lists it as a threat, and that listing is not rejected by Congress.

A White House spokesperson said Wednesday that the administration does not comment on pending legislation.

But Defense Secretary James Mattis, in testimony to a Senate committee in March, asked Congress to approve a new authorization as a “statement of the American people’s resolve.” He told the Senate Appropriations Committee that he has been wondering why Congress has not put forth a new AUMF, or at least debated the issue.

This is not the first attempt by Flake and Kaine, who introduced a similar bill in 2015 that never got out of committee.

Kaine said they are open to amendments from other lawmakers on this bill, and Flake said bipartisanship is the best way forward. Flake, noting that he and Kaine both have immediate family in the military, said a partisan final product would be “devastating” to the ability to send a message of solidarity to Americans.

“They need to know we speak with one voice,” he said.

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Alex Valdez/Cronkite News

Sen. Jeff Flake, R-Arizona, said that close to three-fourths of the current members of Congress were not in office in 2001 and 2002, the last time lawmakers voted on measures that authorize the use of military force in the war on terror.