Panelists say Congress should reevaluate its hold on foreign policy

The 2018 midterm elections may have broken the single-party rule of Congress and the White House, but that doesn't make a reassertion of Congressional foreign policy power much more likely.

That was the consensus of the second panel at the America's Role in the World Conference, "The New Congress, War Powers, and U.S. Foreign Policy," at Indiana University Bloomington on March 21. Moderated by IU Bloomington Provost Lauren Robel, the discussion quickly honed in on a nearly 18-year-old act of Congress that has ended up authorizing military actions by presidents since it passed in 2001.

The Authorization for Use of Military Force passed Congress in the wake of the terrorist attacks of Sept. 11, 2001. The panelists all emphasized that much has changed since then.

IU Bloomington Provost Lauren Robel talks with Harold Hongju Koh on a stageView print quality image
Lauren Robel, provost of IU Bloomington, talks with Harold Hongju Koh of Yale Law School during a panel on "The New Congress, War Powers, and U.S. Foreign Policy" at the America's Role in the World conference. Photo by Anna Powell Teeter

"We are operating in multiple countries with multiple configurations of force under an authorization that was passed in 2001 to deal with the fact that the Taliban were providing safe harbor to al-Qaida," said Jake Sullivan, the Montgomery fellow at Dartmouth College and a senior fellow at the Carnegie Endowment for International Peace. "Now we're dealing with terrorist groups that didn't exist then, in countries never remotely in contemplation by the people who passed that authorization."

Sullivan added that he actually advocated for the president's power under that act while he served as deputy assistant to President Barack Obama and national security adviser to Vice President Joe Biden. But he said it's time to have a debate on foreign policy issues surrounding where, how and against whom we want to be militarily engaged in the world. "And the reason we have not had that debate is because it's easier for members of Congress to just say, 'Let the president deal with that,'" Sullivan said.

"The fact of the matter is that the war powers resolution is just not relevant anymore to the kinds of actions that occur," Harold Hongju Koh of Yale Law School said. Koh is one of the country's leading experts on national security law. He spent nearly four years as the 22nd legal adviser of the U.S. Department of State. He noted that changes to the war powers delegations have happened in the wake of disasters. Given an 18-year war in Afghanistan and a move by the president to bypass the Congressional budgeting powers through an emergency declaration, Koh said, Congress must take back power because we are in another time of disaster. "I think we have to acknowledge that we're pretty close to the same situation now, and there's another occasion to do so," he said.

Brian McKeon's perspective is built on 20 years working for then-Sen. Joe Biden, including a dozen as his chief counsel for the Senate Foreign Relations Committee, and eight years in a variety of national security positions in the Obama White House. Right now, he said, the U.S. lacks a "focused moment" like a disaster event to incite Congress to act. "What's lacking now -- there are members now who care to fix this problem with the 2001 AUMF," McKeon said, "but there's just not enough political pressure and interest to do it."

Read more coverage of the America's Role in the World conference

Washington Post opinion writer and MSNBC contributor Jennifer Rubin said Congress should view foreign policy as a key matter for its oversight function of the executive branch. "We don't think of oversight when we talk about war powers or about these intersections in foreign policy," Sullivan said, "but that's perhaps the best tool that Congress has to call the president to account, to try to figure out what the heck was going on over there, to have hearings to inform the public."

In the end, at least, Congress can provide some symbolic action. She said that has happened recently.

"The rest of the world is somewhere between horrified, scared, shocked, dismayed at what they see," Rubin said regarding President Trump's foreign policy actions. "But when you have an enormous delegation of Congress that goes, for example, to the Munich Security Conference held last month, that does say something to our allies that there is an understanding -- there is an appreciation -- for our democratic allies that goes beyond one president."