I.Introduction
After twenty years of continuous war – including the post-9/11 militarised counter-terrorism campaign known as the “war on terror”, the 2003 invasion and occupation of Iraq, involvement in elective wars in Libya and Yemen, as well as moments of high tension with Iran – the U.S. Congress has taken halting steps to reassert itself in matters of war and peace. President Donald Trump faced strong, though unsuccessful, bipartisan pressure from lawmakers to end U.S. military support for the Saudi-led air war in Yemen and abjure the use of military force against Iran.1 More recently, bipartisan coalitions of lawmakers have pushed to reform 50-year-old war powers legislation and to replace open-ended and outdated authorisations for military operations against al-Qaeda, the Islamic State (ISIS) and their affiliates in the U.S. war on terror.2
Yet these legislative efforts to repeal war authorisations and enact structural war powers reforms are long-term initiatives that, for the moment, have stalled. In the meantime, there are steps Congress can take now (ideally with the support of the executive branch) that would improve its capacity to oversee U.S. participation in conflicts and to shape more substantial war powers reforms down the road. These measures, which can mostly be accomplished without legislation, are focused on improving the flow of reliable information to Congress.
This report examines why such measures are needed and how they could help. It describes how, as the executive branch has asserted increasingly unilateral war powers with congressional acquiescence, it has also avoided giving timely information to Congress about U.S. operations – including, most recently, major counter-terrorism engagements in new or emerging theatres of conflict. It also looks at how to improve communication between the two branches, procedures that might allow members of Congress to more effectively glean and analyse information, and mechanisms legislators could use to elicit information if the executive branch resists cooperation. The report draws upon scholarly literature, think-tank reports and interviews conducted largely between July 2021 and August 2022 with more than three dozen current and former congressional staff members and executive branch officials (including members of Crisis Group’s staff who previously served in government and contributed to the report).
Map of U.S. Military Counter-terrorism Hostilities and Detention Operations, 2001-2021
II.Presidential War-making Requires Oversight
The U.S. presidency’s war powers have been on a general, though not uninterrupted, upward trajectory since World War II.3 The aggrandisement of presidential war-making authority is a result of Congress delegating power as well as the executive branch arrogating power to itself.4 In the past two decades in particular, Congress has given the executive branch a strikingly wide berth to define the scope of a global counter-terrorism campaign widely referred to as the “war on terror”.5 The primary legal basis for this war is the 2001 Authorisation for Use of Military Force (hereafter, the 2001 AUMF), which empowers the president to use all “necessary and appropriate” force against actors involved in specified ways with the attacks of 11 September 2001, as well as those harbouring them.6 As Crisis Group has written previously, this authority has proven quite elastic in practice.7 Moreover, Congress has generally shown little appetite for checking the expansion of the executive branch’s powers through legislative reform, often in effect ratifying the executive’s decisions after the fact through supportive appropriations and other legislative acts.8
A.The Poorly Constrained Commander-in-Chief
Both the U.S. constitution and the 1973 War Powers Resolution impose limitations on the use of force by the executive branch. But successive presidential administrations have aggressively interpreted these purported checks to the point that it is now far easier for the executive to unilaterally start or expand a war than it is for Congress to limit or end one. Although Article I of the constitution vests the power to declare war in Congress, and affords it numerous associated powers, Article II makes the president commander-in-chief of the armed forces. The executive branch has read the powers conferred by the commander-in-chief clause very broadly – to encompass prerogatives that go far beyond the self-defence powers it has always been understood to enjoy – and the constraints imposed by the War Powers Resolution very narrowly.
The U.S. Department of Justice’s Office of Legal Counsel (OLC), which is normally the last word on constitutional and statutory interpretation within the executive branch (and thus acts as something like an intra-branch Supreme Court), does acknowledge certain checks on the president’s unilateral war powers.9 According to the framework OLC has developed since the Vietnam War, the president must be able to establish that a unilateral use of force serves a sufficiently important “national interest” and that the “nature, scope and duration” of the anticipated hostilities will not rise to the level of “war in the constitutional sense”.10
In many cases, however, neither of these tests poses a particular hindrance for the White House. Executive branch lawyers have deemed the national interest to include everything from an expansive conception of self-defence to stabilisation of regions far from U.S. shores, leading a growing chorus of experts to characterise this test as nearly meaningless.11 For its part, the “nature, scope and duration” test is both pliant and unevenly applied by the executive branch. In the run-up to the Afghanistan and Iraq conflicts, for example, OLC issued opinions positing that President George W. Bush had unilateral authority to launch those hugely consequential wars even in the absence of congressional authorisation.12 These opinions remain on the books, despite the urging of scholars and former senior government lawyers from both parties that OLC withdraw them.13
The 1973 War Powers Resolution sought to strengthen lawmakers’ hand in matters of war and peace but in practice has proven a weak constraint on executive action.
The 1973 War Powers Resolution sought to strengthen lawmakers’ hand in matters of war and peace but in practice has proven a weak constraint on executive action. Enacted toward the Vietnam War’s end as a safeguard against unilateral presidential war-making, the resolution both requires the executive to notify Congress within 48 hours of certain executive branch activities relating to military deployments and requires the U.S. military to withdraw forces introduced into “hostilities” (an undefined term) or situations where hostilities appear “imminent” if Congress has not authorised the deployment within 60 days of notification.14 (These requirements are discussed at greater length in Section III below.) The resolution also provides that the two houses of Congress can together vote to direct the withdrawal of U.S. forces from hostilities through enactment of a concurrent resolution – ie, an act of Congress not requiring presidential signature.15
Yet a combination of executive branch interpretation, court decisions and congressional acquiescence have undermined the 1973 law’s effectiveness as a mechanism for regulating executive war-making. To be sure, the resolution still requires the withdrawal of unilateral troop deployments absent timely authorisation. But beginning early in the resolution’s history, successive administrations have interpreted the term “hostilities” very narrowly – taking advantage of the absence of statutory language that might otherwise have constrained it – and also developed counting methods that delay reaching the 60-day threshold.16 Further, even under the executive branch’s own definition of “hostilities”, the 48-hour notifications mandated under the resolution have been uneven.17
Moreover, the Supreme Court’s 1983 INS v. Chadha decision cast constitutional doubt upon the capacity of Congress to order the withdrawal of troops through a concurrent resolution, as the War Powers Resolution originally contemplated.18 Following the Court’s decision in Chadha, Congress amended the 1973 law to replace the concurrent resolution mechanism with procedures for a joint resolution that would require the president’s signature. Consequently, the president can start a war without congressional authorisation, but Congress cannot direct a withdrawal from hostilities unless 1) the president is prepared to sign off on it; or 2) it can muster the bicameral supermajority that is required to override a presidential veto. A congressional staffer described the notion that this latter mechanism could bring U.S. participation in a conflict to an end as “laughable”, given the practical and political obstacles.19
In theory, Congress has other options for stopping a war of which it disapproves. In particular, it can deny funding to a war already in progress. But Congress has only rarely deployed these tools.
Beyond the president’s constitutional powers, the executive branch has looked at the 2001 AUMF as affording it something close to a blank check for waging war on jihadist groups around the globe. On its face, the AUMF approves the use of force against groups the president determines to have “planned, authorised, committed or aided” the 9/11 attacks (as well as those who harboured such groups or persons), but successive administrations of both parties interpreted their way around the statutory language requiring a connection to those events. Through the executive branch’s interpretive gloss, groups can be unilaterally deemed targetable under the AUMF if they constitute “associated forces” of al-Qaeda because the U.S. executive views them as having entered the war alongside it.20 Separately, in 2014, the executive branch also deemed ISIS to be targetable under the AUMF on the basis of historical ties between al-Qaeda head Osama bin Laden and Abu Musab al-Zarqawi (the leader of ISIS’s predecessor entity al-Qaeda in Iraq), even though ISIS leaders had broken with al-Qaeda.21
B.Congressional Acquiescence and Inattention
Congress’s acquiescence in the diminution of its power in matters of war and peace, particularly over the last two decades, likely reflects the political incentives at play. According to current and former congressional staff, absent significant casualties or major military setbacks, most voters pay little attention to U.S. wars. Today’s armed forces are all-volunteer, meaning that many citizens do not know anyone, much less have a close family member, who serves. Meanwhile, the military’s heavy reliance on airpower, including drones, allows it to wage war while minimising the risk to U.S. servicemembers.22 So long as U.S. men and women are not at risk, according to some congressional staff, matters pertaining to U.S. wars generally do not rank high among the issues that constituents raise with their elected representatives.23
Members of Congress often see little political upside to taking a hard vote on the use of military force.
As a result, members of Congress often see little political upside to taking a hard vote on the use of military force or appearing to be insufficiently supportive of deployed personnel. To the extent that Congress does take a position on issues relating to the use of force, it often does so quietly, enacting measures that in effect ratify actions the executive has already taken. Thus, members of Congress can reap the benefits of supporting U.S. troops without facing the scrutiny and accountability that would follow from an up-or-down vote to sanction a new front in the war on terror. For example, although Congress never passed an authorisation for the use of military force against ISIS (despite the Obama administration submitting such a draft authorisation to Congress in 2015), it has consistently appropriated funds for U.S. counter-ISIS operations in Iraq and Syria.24
These political dynamics are at play not only regarding authorisations for the use of force, but also with respect to oversight of how the executive branch is using it.25 As discussed below, oversight can take many forms, but it often includes hearings, closed briefings, reporting requirements and other requests for information from the executive branch. Many members of Congress see little electoral advantage to be gained through war powers oversight and show considerable deference to the military, especially when it has been deployed to protect U.S. citizens from what has been portrayed as a global terrorist threat.26 Members of whichever party is controlling the White House at the time are likely to see even less political benefit to exercising vigorous oversight.27 Therefore, among the many issues competing for legislators’ time, scrutiny of the executive branch’s use of force is not usually a priority.28
Overlapping political and professional incentives may also shape the behaviour of congressional staff. Given the higher profile and greater proximity to power (not to mention, at least for senior jobs, higher pay) of positions in the executive branch, staff members of the president’s party may be reluctant to engage in aggressive scrutiny of the departments they oversee lest they harm their chances of being appointed to those very departments.29
Additionally, some former congressional staff and executive branch officials described what they referred to as the “capture” of staff by the counter-terrorism operating agencies they were tasked with overseeing.30 One former official opined that there was a certain cachet in “being read into highly classified” programs and joining a small group of people rubbing shoulders with career counter-terrorism operators.31 This former official compared the dynamic to the Hollywood film Almost Famous, in which an aspiring music journalist mistakenly “thinks he’s cool” by virtue of hanging around a rock band.32 Current and former congressional staff as well as former U.S. officials characterised the staff of the House and Senate defence committees in particular as generally deferential to the Pentagon and typically unwilling to antagonise its officials.33
The converse is that when it does happen, oversight by members of Congress from the opposition party may be highly partisan and non-substantive – involving grandstanding rather than serious oversight. Even when members of Congress see advantage in trying to constrain the president’s use of force, such pushback often takes the form of performative soundbites rather than the sustained inquiry usually necessary to ferret out information from the executive branch.34 The House of Representatives investigations of the 2012 attack on a U.S. facility in Benghazi, Libya, that cost the lives of four U.S. personnel, including then-Ambassador Chris Stevens, illustrate this dynamic. Rather than focusing on the Obama administration’s 2011 decision to intervene in Libya without congressional authorisation or the legal theories underpinning that choice, the Republican-dominated House conducted six separate inquiries – often tinged with conspiracy theory – for the admitted purpose of undermining the presidential candidacy of Hillary Clinton, who was secretary of state at the time of the attack.35
More recently, a combination of partisan bickering and distractedness undermined the effectiveness of a House Foreign Affairs Committee hearing on the 2001 AUMF and war powers. The hearing had been due to focus on reforming the expansive and outdated authorisation for the war on terror. Since it was convened shortly after Russia’s full-scale invasion of Ukraine, however, that subject predictably dominated the proceedings, with members of both parties using their question time to score political points as to which party had been more supportive of Ukraine and more belligerent toward Russia. As a consequence, the committee did not conduct coordinated questioning of the witnesses from the Departments of State and Defense. Members of Congress missed an opportunity to elicit more information from the Biden administration regarding its interpretation of the 2001 war authorisation and its proposals for reform.36
Members of Congress and their staff often have little incentive to do the hard work required to conduct effective oversight.
As reflected in these episodes, due in part to the high tolerance of U.S. voters for interventions that do not directly involve U.S. troops (or, to the extent they do, have a light footprint) and that remain off the front pages, members of Congress and their staff often have little incentive to do the hard work required to conduct effective oversight.37 At the same time, members have considerable latitude in their postures on these issues – even being able to reverse them without explanation – without suffering political costs.38
The lack of political saliency also affects the amount of time members of Congress are willing to spend on the war on terror. Time is a scarce resource for lawmakers, and several current and former congressional staff members cited tight schedules as a key constraint on scrutiny of the executive.39 A range of policy issues and constituent service matters compete for lawmakers’ time, along with the ever present need to raise funds for re-election. If they are not hearing from their constituents about issues of war and peace, members of Congress are likely to direct their attention elsewhere.40
III.The Information Gap
A.The Problem of Unreported Hostilities
Although Congressional inattention is one reason the legislature often fails to receive the information it needs to police the president’s use of force, the fault also lies with the executive branch, which has often taken a minimalist approach to meeting its legal reporting requirements. As noted above, Congress enacted the War Powers Resolution in 1973 to reassert its constitutional prerogatives with respect to war and peace. In doing so, it sought to forestall any president from taking the country to war without congressional awareness.41 To this end, the Resolution’s Section 4(a) states that in the absence of a declaration of war or other statutory authorisation, the president is subject to tiered requirements to report to Congress on triggering actions by U.S. armed forces within 48 hours. In particular:First, the president must report when U.S. military forces are introduced into 1) “hostilities”, a term that as noted the executive branch interprets narrowly, to include exchanges of fire with hostile forces and airstrikes; or 2) situations of imminent hostilities.42
Secondly, even if U.S. forces are not engaging in hostilities, the president must report the introduction of “combat-equipped” forces into a country (which the executive branch reads as forces carrying crew-served weapons such as mortars or machine guns requiring more than one person to operate).43
Thirdly, the president must report any substantial enlargement of such combat-equipped forces in a country where they are already present.44
At first, the executive branch made commitments that it would adhere strictly to the Resolution’s reporting requirements. After the Resolution became law, the chairman of the House Foreign Affairs Committee, Thomas Morgan, a Democrat from Pennsylvania, asked the secretary of state how the executive branch intended to follow it in practice, specifically the reporting requirements of Section 4.45 In a 7 October 1974 letter, Secretary of State Henry Kissinger explained that “Secretary [of Defense James] Schlesinger and I have agreed that our respective legal counsels will be jointly responsible for bringing immediately to our attention cases where it would be appropriate for us to recommend to the President that a report be submitted to the Congress pursuant to Section 4 of the War Powers Resolution”. Kissinger elaborated that:46
[The] Office of the Secretary of Defense instituted an arrangement whereby the Legal Adviser to the Chairman of the Joint Chiefs of Staff [JCS] informs the Department of Defense [DOD] General Counsel of all troop deployment actions routed through the Chairman’s office which could raise a question as to whether a report to the Congress is required. In implementation of that arrangement a written instruction was promulgated establishing a War Powers Reporting System within the Operations Directorate of the JCS. Arrangements have been made for [the State] Department’s Legal Adviser to receive the same information as is supplied to the DOD General Counsel. Consultations between the two departments’ legal counsels will be arranged as needed.
Yet, as Crisis Group has noted previously, since 2015, U.S. armed forces appear to have engaged in several incidents that, absent statutory authorisation, would seem to fall within the ambit of reportable hostilities for purposes of the War Powers Resolution.47 Many of these hostilities involved fighting regional affiliates of al-Qaeda or ISIS, though not affiliates that the executive branch had previously announced to be within the scope of the 2001 AUMF. These missions have often involved “advise, assist and accompany” operations in which U.S. forces are ostensibly acting in a non-combat role to support local partners. Consider the following incidents, which took place during the tenures of three different presidential administrations.Somalia, 2015-2016: Beginning in 2015, U.S. armed forces were reported to have engaged in ground combat with and conducted airstrikes on foot soldiers of Al-Shabaab, Somalia’s main Islamist insurgency.48 (The executive branch had previously deemed some senior Al-Shabaab leaders to belong to al-Qaeda and thus targetable under the AUMF on that basis, but not the group as a whole.49) A Green Beret was awarded a Silver Star for his actions alongside Somali and Kenyan forces during one particularly intense firefight with Al-Shabaab in July 2015, including for “contributing to 173 enemy killed and 60 more wounded”.50
Mali, 2015: In November 2015, U.S. special operations forces participated in a battle with gunmen linked to al-Qaeda in the Islamic Maghreb (AQIM), to liberate hostages held in the Radisson Hotel in Mali’s capital Bamako.51 Notably, U.S. forces engaged in this action despite the Pentagon having assured the Senate Armed Services Committee in 2013 that U.S. forces would not be involved in hostilities in Mali, merely providing non-combat support to France instead.52 Not until the Trump administration’s time in office would the executive branch add AQIM to the scope of the 2001 AUMF.53
Tunisia, 2017: In February 2017, according to an award citation quoted by The New York Times, U.S. marines accompanying Tunisian partners “got into a fierce fight against members of Al Qaeda in the Islamic Maghreb” along the Tunisian-Algerian border.54 A former U.S. official who confirmed the incident to Crisis Group described a marine being shot during the battle when a bullet ricocheted underneath his body armour. The official also noted that a U.S. intelligence, surveillance and reconnaissance aircraft was overhead during the fighting.55
Cameroon, 2017: In a 2017 incident in northern Cameroon, U.S. Navy SEALs accompanied a Cameroonian partner force to a compound flying an ISIS flag. While the SEALs took up overwatch from some 300m away, the Cameroonian troops approached the compound, calling on its occupants to present themselves. An unidentified man emerged with an AK-47, and a Cameroonian soldier tried to fire upon him, but the soldier’s gun reportedly jammed. Acting in what a former official characterised as “collective self-defence” of the Cameroonian forces, a SEAL sniper shot and killed the man with the AK-47.56
Niger, October 2017: In the most notorious such combat incident (discussed in greater detail below), in October 2017, the Islamic State in the Greater Sahara killed four U.S. soldiers in an attack at Tongo Tongo, Niger, near the border with Mali.57 The executive branch announced months after the fact that it had “concluded that this use of force was also conducted pursuant to the 2001 AUMF”.58
Niger, December 2017: A few months after the Tongo Tongo attack, U.S. forces engaged in what a former official described as a “big battle” with another ISIS affiliate, the Islamic State in West Africa Province (ISWAP), which is a splinter of Boko Haram.59 Green Berets were accompanying Nigerien forces when they became involved in fighting in the Lake Chad region of south-eastern Niger.60 Although U.S. forces were a few hundred metres back from the forward line of troops, they nonetheless engaged in combat, including by providing supporting mortar fire.61 The Trump administration publicly reported the incident in cursory fashion in March 2018, and, after questioning by The New York Times, gave a brief statement on the episode.62
Mali, 2018: In 2018, according to Military Times, U.S. forces with a military observer group attached to the UN mission in Mali came under attack and several servicemembers were injured by jihadists in Timbuktu.63 One of the U.S. personnel who survived the attack told the newspaper, “the severity [of the incident] was so, so played down”.64
Mali, 2022: Most recently, in January 2022, a U.S. soldier colocated with French forces at a base in the city of Gao was injured in a mortar attack that also killed a French soldier and wounded nine others.65 The Pentagon did not identify which armed group conducted the attack.
None of the above incidents was reported to Congress within the War Powers Resolution’s 48-hour reporting period (though similar ones in the same period were).66 Nor was any of this fighting widely understood to be authorised at the time by the 2001 AUMF. In some cases, as with hostilities in Somalia and Niger, the executive branch subsequently invoked this war authorisation as legal authority which could obviate the need for such reports.67 Yet, in other situations, the executive branch never offered a public explanation for the absence of reports to Congress under the War Powers Resolution.
There is a cost to avoidance of this nature. The War Powers Resolution was enacted in part to prevent any president from taking the country to war in secret. The failure to report such hostilities, or quietly and retroactively sweeping them under the 2001 AUMF, undermines this purpose, as well as the legislature’s capacity for oversight, and increases the risk that the U.S. will unwittingly slide into new conflicts without adequate deliberation of the costs and benefits of such action.
B.Uneven Transparency
In part because of the executive branch’s secretive gambits to avoid reporting and other requirements under the War Powers Resolution, Congress has consistently had to play catch-up in learning how and where the White House relies on the 2001 AUMF in waging the war on terror.68 As noted above, the executive branch has, with congressional acquiescence and sometimes post hoc ratification, expanded the deemed scope of the authorisation over the past twenty years to include new groups and permit operations in new countries.69 During much of this period, the executive branch has treated as secret the groups covered by the 2001 AUMF; prior to 2013, in fact, it did not even tell Congress with whom the U.S. was at war.70
In order to get a better handle on the war on terror’s scope, Congress has passed a number of additional reporting requirements.71 These include one enacted in December 2019 that the president provide a comprehensive report every six months of activities undertaken under the 2001 AUMF.72
The Trump administration ... the Biden administration ... did not submit the legally required reports regarding actions taken under the 2001 AUMF.
Yet the Trump administration and, at first, the Biden administration as well did not submit the legally required reports regarding actions taken under the 2001 AUMF. A congressional staff member attributed the Trump administration’s failure to do so to the general breakdown in relations between the White House and Congress following Trump’s first impeachment in 2019.73 The Biden administration eventually submitted the report in March 2022, the day before a congressional hearing on 2001 AUMF at which witnesses from the Departments of State and Defense were to testify.74 The hearing, as is not unusual, had the effect of spurring the executive branch to catch up on overdue tasks before senior officials were to testify. Although portions of these reports are unclassified, they have not yet been publicly released. Moreover, the Biden administration continues to treat as classified the full list of groups covered by the 2001 war authorisation.75
C.Barriers to Information Flow Within Congress
On top of the challenges that Congress faces in obtaining information from the executive branch regarding the use of force, the legislative branch has itself erected several barriers that impede dissemination of information within Congress and thus hamper its own ability to monitor where, how and against whom the president is waging war. Congress ties its own hands through information silos, divisions between the staff of committees and personal offices, and the related bind of sharing classified information.76
Oversight of use-of-force operations is divided among three sets of committees in both the House and the Senate dealing with foreign affairs, armed services and intelligence. Each of these sets of committees has separate though overlapping oversight jurisdiction over the Departments of State and Defense, as well as the various U.S. intelligence agencies. According to several current and former congressional staff, information silos between these committees are a key reason that to “no one” in Congress has a comprehensive view of the use of force by the executive branch.77 These silos are largely a function of committees guarding their bureaucratic turf, which too often leads them to hoard rather than share information. The executive branch is able to exploit this congressional tendency to avoid unwanted inquiries.78
A longstanding point of friction within Congress concerns which among the foreign affairs and defence committees has jurisdiction regarding the use of military force.79 The foreign affairs committees (the House Foreign Affairs Committee and Senate Foreign Relations Committee) have jurisdiction over war authorisations, such as the 2001 AUMF. At least in principle, these committees should therefore have oversight of use-of-force operations under these authorisations.80 In practice, however, the Senate and House Armed Services Committees regard most matters relating to military operations as lying within their exclusive purview.81
Jurisdictional disputes are particularly relevant to the oversight of “advise, assist and accompany” operations.
These jurisdictional disputes are particularly relevant to the oversight of “advise, assist and accompany” operations. Although notionally non-combat, such operations nonetheless sometimes involve U.S. forces in hostilities. Such combat includes incidents such as those described above in which it is questionable whether Congress has authorised the use of force in the first place.
Some of these operations are undertaken in connection with a statute that permits the Pentagon to spend appropriated funds in support of foreign counter-terrorism forces. This statute is sometimes referred to as “127e”, a designation taken from its U.S. Code citation – 10 U.S.C. §127e. Though 127e is not a use-of-force authorisation (a position Congress explicitly wrote into the law following the attack at Tongo Tongo), U.S. forces have sometimes treated it that way in the field.82 According to a former official, the military has used the authority to create “clear, unambiguous proxies of the United States”, which it could then partner with in combat operations.83
Notwithstanding the notionally non-combat purpose of the U.S. missions to advise, assist and accompany partner forces in conjunction with 127e programs, U.S. forces often found themselves using lethal force.84 A former official suggested that the mission creep was inevitable, explaining that “if you’re accompanying a partner in combat, then you’re engaging in combat”.85 A congressional staff member noted that one had “to assume [U.S. forces on 127e programs] engaged in occasional hostilities”, though Congress would often learn about such incidents only afterward, when U.S. troops were awarded medals or killed.86 Although the executive branch does not publicly disclose where 127e programs operate, media reporting indicates U.S. forces deployed in connection with the authority have engaged in combat in several African countries.87
Disputes between the foreign relations and defence committees regarding oversight of these programs have contributed to inadequate supervision of these operations even within the executive branch. Due to concerns about the foreign affairs committees encroaching on their turf, the congressional defence committees have narrowly scoped the consultation requirements relating to use of this authority.88 Although 127e requires the secretary of defense to obtain the concurrence of the relevant U.S. chief of mission to conduct a so-called 127e program in his or her area of responsibility, it does not require the concurrence or even notification of the secretary of state.89 A legal requirement for the secretary of state’s concurrence is absent by design. According to current and former congressional staff, the defence committees fear that by involving the secretary of state in what they regard as an operational program, they would, in effect, commit themselves to sharing oversight jurisdiction over these programs with the foreign affairs committees, something they are loath to do.90
In the absence of a legal requirement to obtain the secretary of state’s concurrence, the coordination of these programs is left to the discretion of the relevant commander (eg, a four-star general responsible for U.S. operations in regions such as Africa or the Middle East) and the chief of mission for the pertinent country.91 According to former U.S. officials, chiefs of mission in host countries were in their experience generally eager to support counter-terrorism operations and thus often easily persuaded by their military counterparts to concur in these programs without consulting the State Department in Washington.92 Yet the lack of adequate consultation within the State Department could result in failure to fully consider legal, foreign policy and humanitarian concerns with such operations before approving them.93 As a consequence, the executive branch may never have thoroughly contemplated – let alone vetted – decisions about whether and to what extent the U.S. should be involved in particular conflicts through such programs.
Information silos between committees are by no means the only impediment to the flow of information within Congress.
Information silos between committees are by no means the only impediment to the flow of information within Congress. Several current and former staff members interviewed by Crisis Group described divisions between committee staff and staff in individual congressional offices.94 These two sets of staff answer to different bosses, with committee staff reporting to the chair and ranking members of the committee and staff in personal offices reporting to individual members.95 Committee staff generally have better access to information from the executive branch. The relevant departments and agencies are often more responsive to the committee staff’s requests, and the chairs and ranking members are typically the recipients of congressional reports discussed above.96
Differential access to classified information further exacerbates the information asymmetry between committee staff and employees in personal offices.97 Until recently, only committee staff have typically held clearances to view “Top Secret/Secure Compartmented Information” (TS/SCI).98 As many classified reports and briefings are marked at this level, staff in personal offices have been denied access to them.99 Recently, the Senate announced that one staff member from each personal office would be granted a TS/SCI clearance.100 The House of Representatives has not announced whether it will follow suit.
These information asymmetries among staff can sometimes matter to policy outcomes because the policy agendas and preferences of these various principals may differ. For example, a committee chair might be more or less deferential to the military than an individual committee member.101 But, in any case, personal office staff are handicapped in properly advising their bosses without full access to available information, particularly information restricted on the basis of classification.102 Individual members may therefore be forced to rely upon committee staff, whose loyalties lie elsewhere, to brief and inform them.103
D.Case Study: Oversight Dysfunction and the Attack at Tongo Tongo, Niger
The killing of four U.S. soldiers by an ISIS affiliate at Tongo Tongo, Niger, in October 2017 and the startled reaction of many in Congress epitomises the dysfunctional oversight of use of force. In the attack’s aftermath, members of Congress said they were unaware that U.S. forces were engaged in hostilities in Niger or even present in the country at all.104 Their surprise that U.S. forces were fighting jihadists in the Sahel resulted in part from the executive branch’s failure to report U.S. military operations to Congress. But members of Congress and their staff also failed to fully comprehend the information they did receive. The responses to the incident, including further obfuscation by the Trump administration, illustrate the ways that gaps in information and analysis can make effective congressional oversight in such settings so challenging.
As mentioned above, in the years leading up to the attack at Tongo Tongo, the executive branch repeatedly failed to report incidents in which U.S. armed forces in Africa engaged in hostilities with a range of jihadist groups. From at least 2015, U.S. forces often on ostensibly non-combat “advise, assist and accompany” missions in fact engaged in combat in Somalia, Mali, Tunisia and Cameroon.105 Had the executive branch reported these prior hostilities to Congress, as would have been required under the War Powers Resolution absent expansive (and sometimes seemingly retroactive) readings of the AUMF, the Tongo Tongo attack might have come as less of a surprise.
Whatever the executive branch’s shortcomings in terms of sharing information with Congress, however, Congress also seems to have failed to fully understand the information that the executive branch did share with it.106 In February 2013, the Obama administration notified Congress, consistent with the War Powers Resolution, that the Pentagon had dispatched combat-equipped forces to Niger to “provide support for intelligence collection and … facilitate intelligence sharing with French forces conducting operations in Mali, and with other partners in the region”.107 In observance of semi-annual reporting requirements under the War Powers Resolution, the Obama and Trump administrations subsequently gave updates to Congress every June and December on the growing contingent of U.S. troops in Niger.108
Although these reports on combat-equipped troops did not detail what U.S. forces in Niger were doing, the armed services committees received additional information in closed briefings.109 Yet the staff and members of these committees did not seem to grasp what “advise, assist and accompany” missions entailed.
Congress was “naive” if it thought no one was going to get hurt on “advise, assist and accompany” missions.
A former U.S. official who briefed staff members of the Senate Armed Services Committee in the wake of the attack was “stunned” that, after seventeen years of the war on terror, staff members did not understand what “by, with and through” – a phrase often used to describe U.S. partnered operations – meant in practice.110 In this official’s view, Congress was “naive” if it thought no one was going to get hurt on “advise, assist and accompany” missions.111 He attributed Congress’s failure to appreciate that U.S. forces were in combat on these operations partly to its inability to separate the “wheat from the chaff” in the information it received from the Pentagon.112 Subsequent expressions of astonishment by members of the Senate Armed Services Committee attest to the failure of these closed-door briefings to illuminate the nature of U.S. operations in Niger.113
Another former official recounted a general failing of counter-terrorism oversight that could have contributed to Congress being blindsided by the attack at Tongo Tongo. This former official noted that while defence committee staff were generally attentive during counter-terrorism briefings, they asked few questions and lacked the necessary background “to drill down” for oversight.114 Not surprisingly, briefers from the Pentagon would not volunteer information they preferred to keep close to the vest.115 As a former congressional staff member observed regarding staffing levels and expertise, on “matters of life and death” there’s “not a level playing field” between Congress and the executive branch.116 Another congressional staffer attributed the shock in Congress at the Tongo Tongo attack to a general lack of interest in African affairs on Capitol Hill.117
In the view of one former official, this absence of adequate supervision contributed to U.S. forces launching the fatal Tongo Tongo mission.118 According to this official, the lack of effective oversight regarding “advise, assist and accompany” missions in Africa prior to the Tongo Tongo attack resulted in U.S. forces “running with scissors” – ie, undertaking overly risky activities, including conducting operations such as “chasing HVTs [high-value targets], which they never should have been doing”.119
Even after the attack, Congress struggled to get a straight answer from the executive branch about U.S. operations in Niger. The Trump administration provided shifting legal justifications. Then-Secretary of Defense James Mattis testified in October 2017 that U.S. forces were in Niger “under Title 10 in a train and advise role”.120 (Title 10 is a chapter of the U.S. Code that includes Department of Defense authorities but is not itself a use-of-force authorisation.) In a subsequent report to Congress, however, the administration claimed that the 2001 AUMF covered both the October 2017 hostilities at Tongo Tongo and the “big battle” two months later in south-eastern Niger described above.121 This justification was novel, as the executive branch had not previously invoked the 2001 war authorisation for Niger operations.
IV.Stonewalling
Beyond failing to report information to Congress, the executive branch sometimes affirmatively refuses to share documents relating to the use of force or related issues with Congress even when legislators specifically request them. Presidents of both parties regularly rely upon purported legal privileges as a tool to keep information from Congress, including its theories regarding the scope of its authority to use force either directly or indirectly through a partner or proxy. Yet understanding how the executive branch conceives of its own authority to wage war is vital if Congress is to review, constrain or shape such military operations.
A.Hiding Information behind Legal Privilege
The potential implications for international peace and stability of the executive branch’s undisclosed legal theories can be significant. In one notorious episode in 1989, William Barr, then head of OLC, refused to share with Congress a legal opinion regarding the Federal Bureau of Investigation’s authority to abduct people overseas on the grounds that the legal advice was confidential.122 The legal opinion (eventually released to the public by a subsequent administration) concluded that the president could “override” the UN Charter’s prohibition on the use of force as a matter of U.S. domestic law.123 As that prohibition is the key international law constraint on presidential war-making, the conclusion that the president can, in effect, disregard it is potentially of great consequence. In the short term, this opinion may have helped pave the way for the U.S. invasion of Panama in December 1989, an operation conducted without congressional authorisation to capture Panamanian leader Manuel Noriega.124 It remains on the books.
Similarly, the Trump administration hid from Congress and the public a 2017 legal memorandum relating to the 6 April 2017 U.S. airstrikes on Syria in retaliation for the Syrian government’s use of chemical weapons. This memo was requested both by Senator Tim Kaine, a Democrat from Virginia who sits on both the Armed Services and Foreign Relations Committees, and separately under the Freedom of Information Act by the Protect Democracy Project, an advocacy organisation.125 The Trump administration refused to divulge the document and in subsequent litigation with the Protect Democracy Project invoked the presidential communications privilege to justify withholding the memo from public disclosure.126 The court ruled in favour of the Trump administration and the memo remains undisclosed.
The U.S. conducted a further round of retaliatory airstrikes on the Syrian government in 2018, following another chemical weapons attack. Although the Trump administration did eventually release a Justice Department opinion justifying the 2018 airstrikes as within the president’s authority under Article II of the Constitution, it is not publicly known to what extent this document mirrors the guidance from 2017.127 Nor did the Trump administration ever publicly explain how these airstrikes against the Syrian government comported with international law, a subject of considerable international disagreement.128
The executive branch has ... cited interests in the confidentiality of legal advice to withhold information from Congress regarding indirect U.S. roles in conflict.
The executive branch has also cited interests in the confidentiality of legal advice to withhold information from Congress regarding indirect U.S. roles in conflict, such as through arms transfers to foreign belligerents. Under the Arms Export Control Act (1976), Congress delegates to the president the authority to conduct weapons sales, but in principle retains for itself the power to demand information regarding proposed transfers or even block particular sales. (This latter power was also weakened by the Supreme Court’s above-referenced decision in Chadha.) In practice, however, the executive branch is able to shield relevant facts and analysis regarding U.S. arms sales from congressional scrutiny on the basis of poorly defined confidentiality interests.
With regard to the conflict in Yemen, the executive branch has repeatedly cited such vague confidentiality interests to withhold from Congress information pertaining to U.S. arms sales to and other support for Saudi Arabia that may have caused civilian casualties or law of war violations. Concerned about U.S. complicity, members of Congress have tried to look at U.S. involvement more closely, often to be frustrated by the executive branch. For example, Representative Ted Lieu, a Democrat from California, repeatedly asked the State Department to release a 2016 legal memorandum on U.S. military support for the Saudi-led coalition. According to The New York Times, this memo cited the risk that U.S. officials could be complicit in alleged law of war violations by virtue of that assistance.129 The Trump administration rebuffed Lieu’s requests, on the stated basis of its “strong interest in maintaining the confidentiality of legal advice”.130
The Trump administration also relied on nebulously defined “executive privilege concerns” as part of a strategy for thwarting a congressionally requested investigation into U.S. arms sales to Saudi Arabia. In 2019, members of Congress asked the State Department’s Office of the Inspector General to look at the Trump administration’s decision to conclude certain arms sales to Saudi Arabia in the face of congressional opposition due to civilian casualties in the Saudi-led military campaign in Yemen.131 The inquiry also examined the State Department’s efforts to mitigate the risk that U.S. weapons transferred to Saudi Arabia would kill civilians in Yemen.132
The White House obstructed this effort in several ways. President Trump first fired the State Department’s inspector general conducting the inquiry.133 Then, in a highly unusual move, his administration insisted on extensive redactions to the Office of Inspector General’s final report to Congress, including “significant information in the classified annex necessary to understand [the] findings and recommendations”.134 The State Department justified these redactions on the grounds of “executive branch confidentiality interests, including executive privilege”.135 Without explanation, the executive branch has continued to withhold this material from Congress under the Biden administration.136
Congress, however, has contested the Trump administration’s claim of “confidentiality interests” as a basis for the executive branch to withhold information on arms sales and civilian casualties. At a September 2020 hearing, then-Chairman of the House Foreign Affairs Committee Elliot Engel, a Democrat from New York, accused State Department officials of improperly withholding the Inspector General’s report from Congress.137 According to Engel, these named officials, who were themselves involved in the arms sales and witnesses interviewed in the course of the Inspector General’s probe, had conflicts of interest in redacting the final report received by Congress.138
After President Biden took office, members of Congress persisted in seeking the information about arms sales and civilian casualties in Yemen the Trump administration had originally concealed. In a July 2022 letter to the secretary of state, 31 members of Congress, including Adam Schiff, a Democrat from California and the chairman of the House Permanent Select Committee on Intelligence, asked the Biden administration to provide “appropriate congressional committees a fully unredacted version of the State OIG’s 2020 report”. Further, the members of Congress requested that the State Department review the classified annex to determine what material should remain classified, reminding Secretary of State Antony Blinken that “[i]nformation should not be classified in order to conceal inefficiency, violations of the law or administrative error”.139
There is some evidence to suggest that the executive branch’s “confidentiality interest” claims are pretextual.
There is some evidence to suggest that the executive branch’s “confidentiality interest” claims are pretextual: a former State Department official familiar with the matter claimed that the executive branch resisted making disclosures to Congress for fear of jeopardising future weapons sales to Saudi Arabia.140 Against this backdrop, official disclosures from the executive branch to Congress regarding the U.S. role in civilian casualties in Yemen have been much less complete than unofficial disclosures through the press.141
B.Case Study: U.S.-Iran Tensions, 2019-2020
Even when Congress is on notice that the president may unilaterally use force, it faces significant hurdles in fully informing itself about such military operations beforehand. In the year leading up to the U.S. killing of Major General Qassem Soleimani, who headed the elite Qods Force of Iran’s Islamic Revolutionary Guards Corps, Congress was well aware that President Trump might precipitously order an attack on Iran. Nonetheless, it struggled to nail down the Trump administration’s theories for using force against Iran in 2019-2020, revealing the many impediments the executive branch puts in place in order to maintain legal and operational flexibility.142
Congressional concerns about escalating U.S.-Iran tensions spiked after Iran downed a U.S. drone over the Gulf in June 2019, leading the U.S. to plan a retaliatory attack on Iran that President Trump cancelled at the last minute.143 (Cautions from Fox News host Tucker Carlson about the risks of escalation reportedly weighed heavily in Trump’s decision to abort the attack.144) Chairman Engel wrote to the State Department requesting “any and all legal analysis” pertaining to the potential application of the 2001 and 2002 congressional war authorisations to Iran.145 Anticipating that the executive branch might seek to withhold information on the grounds of purported legal privileges, Engel’s letter asserted that “common law privileges do not apply to Congress, which derives its oversight powers directly from the Constitution”.146
The State Department declined to share the requested documents, but did send a letter in response.147 The letter explained that “the Administration has not, to date [emphasis added], interpreted either AUMF [authorization for the use of military force] as authorizing the use of military force against Iran, except as may be necessary to defend U.S. or partner forces engaged in counterterrorism operations or operations to establish a stable, democratic Iraq”.148 Current and former congressional staff interviewed by Crisis Group regarded the caveat “to date” as designed to give the executive branch the leeway to rely on these war authorisations should it decide to fight a war with Iran.149
Unsatisfied with this written response and the administration’s failure to provide the requested documents, the House Foreign Affairs Committee convened a closed, bipartisan briefing with officials from the Departments of State and Defense in order to better understand the Trump administration’s use-of-force theories vis-à-vis Iran. According to former staff, the Trump officials started off with “mumbo jumbo” and “arm waving” that invoked Article II of the constitution as well as the 2001 and 2002 war authorisations as potential legal authorities for using force against Iran.150
To get beyond the administration’s prepared talking points, congressional staff cut off the State Department’s acting legal adviser (a political appointee) and began directly questioning the career lawyers from the State Department and Pentagon. Under extended probing by congressional staff, these executive branch officials began to soften their reliance on some of their more maximalist claims of war authority.151 For instance, the officials dropped the argument that either the 2001 or 2002 AUMF was a source of authority for potential hostilities in the Gulf.152
Thus, the Trump administration was left solely with reliance upon Article II of the constitution, which provides the president limited authority to use force without congressional authorisation.153 The administration’s theory for potential hostilities in the Gulf seemed to be that any use of force premised on the president’s authority under the constitution would not amount to a “war” that would need a green light from lawmakers.154
Despite congressional efforts to get a grip on potential hostilities against Iran, the Trump administration’s subsequent decision to kill Soleimani in an airstrike at the Baghdad airport came like a bolt from the blue.155 According to former and current congressional staff, no one in Congress expected it.156 Members of Congress recognised that the killing created a very serious risk of escalating hostilities between the U.S. and Iran.157 That fighting did not in fact spiral further following Iran’s retaliatory missile attack on U.S. forces at al-Assad airbase was a stroke of luck that appeared to owe little to the Trump administration’s calculations.158
Following the strike on Soleimani, Congress wanted answers from the Trump administration regarding the factual and legal basis for the attack. What the Trump administration provided was widely seen as unsatisfying.159 Secretary of State Mike Pompeo and other officials repeatedly claimed that Trump had ordered the strike in response to an “imminent threat” to U.S. forces and personnel but failed to offer a compelling story about either the threat in question or how the strike was intended to address it.160 Senator Mike Lee, a Republican from Utah, who was at the time helping defend Trump in impeachment proceedings, described officials’ classified briefing on the basis for the strike as “insulting”.161
Senator Chris Van Hollen, a Democrat from Maryland [observed] “It just goes to show how they’re making this up as they go”.
As with U.S. combat in Niger, the executive branch offered shifting legal justifications for the attack on Soleimani. After struggling to stand behind its “imminent threat” justification, the Trump administration abandoned this notion within days, with Attorney General Barr confessing that the “concept of imminence is something of a red herring”.162 The administration’s inability to get its story straight and failure to provide substantiating facts led Senator Chris Van Hollen, a Democrat from Maryland, to observe: “It just goes to show how they’re making this up as they go”.163
A congressional staff member told Crisis Group that the biggest problem from Congress’s perspective is that it did not believe the factual justification the Trump administration supplied for the attack on Soleimani.164 In explaining the anger of legislators from both parties, he said the “appropriate balance in war powers requires trust, acting in good faith. The administration can’t just lie”.165
In order to get better answers from the administration, the House Foreign Affairs Committee scheduled a public hearing with Secretary Pompeo in late February 2020.166 Committee members and staff attempted to coordinate questions in advance of the hearing in order to extract useful information from the administration, including by using consultants on questioning strategy who had previously advised the House Judiciary Committee during Trump’s impeachment.167 This plan ran off the rails in the hearing itself, however, as members departed from the Soleimani script and began questioning Pompeo about the emerging COVID-19 pandemic.168 Pompeo was therefore able to stonewall the committee on Soleimani, giving no answer of substance.169
Even under the Biden administration, the executive branch continues to withhold from Congress and the public the complete legal justification for the Soleimani strike. In March 2020, two months after the killing, the Department of Justice completed a memo analysing the legal authority to conduct the operation.170 Yet first the Trump administration and then the Biden administration refused to release the document, arguing in court that the memorandum was protected from disclosure by “presidential communication privilege”.171 Although a court eventually ordered the Biden administration to reveal excerpts of the document, much of the analysis remains hidden by redactions.172
V.Getting the Facts of War
Restoring Congress’s war powers will not always ensure high-quality decision-making, as there is no guarantee that Congress will act wisely or prudently in a particular case. As Crisis Group has previously observed, Congress did, after all, authorise the Vietnam, Afghanistan and Iraq Wars.173 Nevertheless, it remains a worthy effort. Over time, meaningful inter-branch engagement is the most reliable mechanism for unearthing information about the nation’s wars, inviting public engagement and generating events (such as hearings and votes) that require members of Congress to create a record on which they can be judged.
But while restoring Congress as an effective check on presidential war-making is essential both as a matter of democratic accountability and as a conflict prevention measure, doing so will be no small task. As noted above, the structural reform that is needed entails significant legislative changes, the contours of which Crisis Group has sketched elsewhere.174 These include narrowing the scope of the 2001 AUMF and making it subject to periodic reauthorisation so that the war on terror cannot proceed as a unilateral executive branch project. They also include overhauling the 1973 War Powers Resolution to restrict the room for manoeuvre that the executive branch has created for itself and impose consequences for non-compliance. Proponents should press for progress on both of these fronts, but because the short-term prospects for such legislative reform are dim, they should also recognise that it will be a long-term effort.
In the meantime, there is still room to make changes that can have a more immediate impact. In particular, both the executive and legislative branches can take steps to ensure that Congress is equipped with good and timely information regarding U.S. wars. Thus, it will be able to monitor present conflicts more effectively, while also acquiring the information that it needs to shape future reforms. For example, identifying any group that should be covered by a reformed 2001 AUMF will require members of Congress to have good information about the state of hostilities with the organisations the U.S. is currently fighting.
The executive branch should make a public commitment to better facilitate congressional oversight in matters of war and peace.
As for specific measures, the executive branch should make a public commitment to better facilitate congressional oversight in matters of war and peace. Maximalist positions on secrecy and privilege may be attractive to executive branch officials in terms of maintaining operational flexibility or keeping embarrassing information out of public view, but they will not generate the kind of scrutiny and accountability that will likely be necessary to wind down or recalibrate the U.S. wars launched after the 2001 terrorist attacks, in line with President Biden’s stated aims.175
As a first step in this direction, the Biden administration should publicly release the full list of groups with which it considers the U.S. to be at war under the 2001 AUMF. The Obama administration undertook this transparency measure in 2016, but neither the Trump nor the Biden administration has replicated it.176 The administration should also publicly disclose the factual and legal bases upon which the executive branch deemed these groups to be within the scope of the 2001 war authorisation.
Further, the executive branch should drop its claims of legal privilege with respect to information relating to the use of force – whether based on vaguely defined executive privilege, or other “confidentiality interests”, or (in some cases) classification. The Biden administration should release to Congress and the public such use-of-force documents as the 2017 legal memo relating to airstrikes in Syria and the Justice Department’s Soleimani legal opinion, as well as State Department documents relating to arms sales and civilian casualties in Yemen previously requested by members of Congress. Redactions on the basis of classified information should be kept to a minimum.
For its part, while Congress should welcome any commitment to make additional disclosures from the executive branch, it should also prepare for the possibility that the executive branch will continue to be less than forthcoming with information about matters of war and peace. If the latter is true, members should adopt a much more serious approach to eliciting information than they have in the past.
First, congressional committees should more routinely hold closed-door, transcribed briefings and interviews before conducting public hearings. However paradoxically, conducting oversight in private as an initial matter may lead to greater public transparency. By first conducting briefings in private, members of Congress are deprived of the opportunity to perform for the television cameras, including by scoring points for partisan gain.177 Out of the spotlight, members of Congress are more likely to focus on their substantive responsibilities and less likely to grandstand.178 Members and staff could work with outside experts to develop lines of questioning intended to elicit information for these closed-door sessions, with interviews transcribed and (if classification permits) released to the public. Subsequent public hearings could then be used to draw public attention to the issues under scrutiny – and give members a chance to make their soundbites for television – but substantive fact finding would have been undertaken beforehand.179
Secondly, Congress should place greater emphasis on securing from the executive branch the underlying documents and legal analyses pertaining to the use of force as opposed to mandating additional reports. Whereas the executive branch may simply treat a reporting requirement as an invitation to tell Congress a carefully crafted story of its own choosing, internal executive branch materials are more likely to reveal the unvarnished reality of U.S. war-making and the legal theories justifying it. Civil society and advocacy organisations may have a role to play in at least revealing the existence of some of this material though Freedom of Information Act requests, as the Protect Democracy Project did regarding the Trump administration’s legal justification for attacking Syria in 2017.
Congress should be prepared to resort to more aggressive tactics when needed to ob-tain information from a recalcitrant executive branch.
Thirdly, Congress should be prepared to resort to more aggressive tactics when needed to obtain information from a recalcitrant executive branch. To this end, members of Congress should seek commitments from executive branch officials, either orally during hearings or in writing that their departments or agencies will provide the requested information. Congress should also make greater use of the forcing function of confirmations, briefings and hearings to press executive branch officials to relinquish requested documents. In 2014, for example, Senators Mark Udall, a Democrat from Colorado, and Rand Paul, a Republican from Kentucky, were able to overcome executive branch claims of legal privilege by blocking a vote on one of President Barack Obama’s judicial nominations. By this means, they extracted an executive branch memo on U.S. targeted killings.180
In important cases that involve extreme intransigence, Congress should consider more frequent recourse to funding restrictions on the executive branch triggered by non-compliance with requests for information.181 In late 2021, Congress deployed such funding restrictions to compel the Pentagon to take certain actions related to mitigating civilian casualties: Section 1048 of the National Defense Authorization Act of Fiscal Year 2022 restricted the release of funds needed to run the Office of the Secretary of Defense until fifteen days after the Pentagon released a civilian harm policy that it had failed to produce, in spite of a legal requirement to do so.182 Although they might contest the constitutionality of such funding restrictions, according to a former congressional staffer, executive branch officials would likely be wary of defying them outright given federal laws that create criminal exposure for government officials who spend unappropriated funds – ie, money that Congress has not given them.183
Fourthly, Congress should take greater advantage of outside expertise to scrutinise the information that the executive branch does make available to it. A disadvantage hampering Congress vis-à-vis the executive branch is the number of staff working on a particular issue and the subject matter expertise of congressional staff relative to their executive branch counterparts. Ideally, Congress would level the playing field by hiring more experienced staff, but the increased funding this approach would require may not be politically viable. Another way for Congress to better equip itself with analysis is through greater crowdsourcing of oversight, including by leveraging the expertise of scholars and analysts outside government. Congress should take greater advantage of these outside sources of expertise by improving timely, public access to unclassified congressional testimony, reports and correspondence with the executive branch.184
Finally, Congress should use the tools at its disposal to reinforce intra-executive branch oversight. It should require inter-agency concurrence for military programs that implicate geopolitical issues. For example, it should work to better ensure that advise-and-assist missions conducted in connection with 127e fiscal authority get adequate scrutiny from both the State and Defense Departments. These programs have too often been the gateway to outright U.S. participation in hostilities; they should be subject to concurrence of the secretary of state, not simply that of the relevant chief of mission. That said, these programs should not be permitted to morph into combat missions without affirmative congressional authorisation – a safeguard that can best be imposed by amending the AUMF so that it cannot be used as a post hoc legal justification for mission creep.
VI.Conclusion
The executive branch has expanded both the war on terror and (more generally) its war powers through its own overreach, but with a helping hand from congressional “underreach”. All too often, Congress has acquiesced to the executive’s arrogation of war-making power to itself. Further, even when given the opportunity, it has not devoted sustained attention to scrutinising the executive branch’s war-making activities. In recent years, Congress has shown renewed interest in asserting its war powers, but it seems unlikely to muster the political will to enact major reforms for the moment. Still, there are other ways in which it can make progress. The practical steps described above, most of which do not require new legislation, would enhance the ability of members of Congress and staffers to extract the information they need to conduct proper war powers oversight now, and better position them to develop meaningful structural reforms in the future.
That does not mean that even minor reforms will be easy. There could well be significant impediments in the coming period. For the last two years, President Biden’s Democratic party has run the two houses of Congress, but come November’s mid-term elections, its opponents in the Republican party could capture one or both of them. Should that happen, Congress will likely become preoccupied with investigations and political score settling as Republicans seek to weaken the Democratic administration in advance of the 2024 presidential election. At a moment of pitched partisanship, it may seem unrealistic to suggest that members of Congress make space for serious war powers oversight among the other politically motivated priorities that are likely to be their preponderant focus as 2024 draws near.
Lowering expectations, however, is not the right approach. Both the Democratic and Republican caucuses include legislators who have shown a strong interest in reinvigorating meaningful oversight as a step toward restoring congressional war powers. Whoever comes out on top in the mid-terms, proponents of war powers reform in civil society, academia and on Capitol Hill should continue to push these members of Congress to take the lead in making small reforms and laying the groundwork for bigger ones. Decades of congressional passivity have helped create a system for governing matters of war and peace that is marred by secrecy, unaccountability and sometimes reckless unilateral decision-making. It may take decades of pressure to reverse the trend. Now is no time to let up.
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