Under legislation being put together in fits and starts, Biden could be in a position to cancel the two-decades-old congressional measure that provided the March 2003 invasion’s legal rationale, the Authorization for Use of Military Force (AUMF) lawmakers adopted in October 2002.
Doing so will require the bitterly divided Congress to do its part by getting the proposal to his desk, so don’t bet the cryptocurrency farm just yet. But for the first time since 9/11, a president may actually take concrete steps to rein in, not expand, executive branch war-making powers.
NDAA is the current path
Last night, Senate Republicans delayed a final vote on the National Defense Authorization Act of 2022, which is expected to serve as the vehicle for the AUMF repeal. But the NDAA is generally considered must-pass legislation, meaning it’s likely to find its way through congressional hedgerows and reach Biden’s desk sooner or later.
Democrats hope to attach a proposal from Sens. Tim Kaine (D-Va.) and Todd C. Young (R-Ind.) that would scrap the 2002 AUMF and a companion AUMF from 1991. Both authorized U.S. military action against Saddam Hussein’s Iraq. Both remain on the books after his death.
They’ll have to overcome opposition to the bipartisan legislation from Senate Minority Leader Mitch McConnell (R-Ky.), who argued in mid-November that passing it would “weaken the authorities that support our military’s presence and operations flexibility.”
And, back in June, McConnell correctly argued that administrations of both parties — Democratic President Barack Obama, Republican President Donald Trump — had invoked the 2002 AUMF for conflicts “far beyond the defeat of Saddam Hussein’s regime.”
That’s true. Obama cited the measure as part of his legal justification for military action against ISIS. Trump did so as part of his legal justification for the airstrike in Iraq that killed Iranian Gen. Qasem Soleimani, even pointing in a footnote to Obama’s rationale.
Supporters of repealing the measure say just because presidential overreach on matters of national security is bipartisan doesn’t make it right.
“Repeal is crucial because the executive branch has a history of stretching the 2002 AUMF’s legal authority,” House Foreign Affairs Committee Chairman Gregory W. Meeks (D-N.Y.) said in June. “It has already been used as justification for military actions against entities that had nothing to do with Saddam Hussein’s Ba’athist’s dictatorship.”
Meeks’s comments came as the House voted to repeal the 2002 AUMF by 268-161, with 49 Republicans joining 219 Democrats in favor.
Days before the vote, Biden had come out again in favor of repeal.
"The administration supports the repeal of the 2002 AUMF, as the United States has no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis, and repeal of the 2002 AUMF would likely have minimal impact on current military operations," the White House said in a policy statement.
While that reads as a rebuttal to McConnell — and it is — that “solely” is important. Since taking office, the Biden administration has mostly leaned on his status as commander in chief under Article II of the Constitution, not the 2002 AUMF, to justify repeated strikes at Iranian-backed militias in Iraq and Syria.
“The Commander in Chief, under Article II, has not only the authority but the obligation to protect American forces in combat theaters and in military operations. So clearly, under U.S. constitutional authorities, this was right there,” Pentagon spokesman John Kirby said in February.
So while the Biden administration says repealing the 2002 AUMF won’t affect any ongoing military operations, it's also not using the authorization to justify new strikes, either, raising the question of whether repeal would have much, if any, direct effect on America’s use of force.
In a way, the true test of Biden’s philosophy of when, where and under what circumstances he can send young Americans into deadly danger may be congressional efforts to rewrite the 2001 AUMF that has underpinned the entire war on terrorism for two decades across nearly every continent.
In his confirmation hearing, Secretary of State Antony Blinken testified the authorizations on the books needed to be reworked, including the one from 2001.
“It’s long past time that we revisit these and review them,” Blinken said. “We did try to do this a few years ago. And it’s not easy to get to yes.”
But the White House policy statement from June hints at administration reservations.
“In working with the Congress on repealing and replacing other existing authorizations of military force, the Administration seeks to ensure that the Congress has a clear and thorough understanding of the effect of any such action and of the threats facing U.S. forces, personnel, and interests around the world,” the statement said, in what sounded like a warning not to hamstring the executive branch.
And that, of course, is why it’s taken until 2021 — possibly 2022 — to repeal the 2002 authorization to topple long-gone Saddam.
What's happening now
Rep. Debbie Dingell’s Dearborn office vandalized, window smashed
“Dingell, a Democrat who got into a shouting match with Rep. Marjorie Taylor Greene [R-Ga.] when Greene in September disrupted an event outside the U.S. Capitol, told the Free Press she believed the incident at her office happened earlier Monday,” the Detroit Free Press’s Todd Spangler reports.
“I was just beginning to feel comfortable again,” Dingell said.
Appeals court hears Trump lawsuit to keep Jan. 6 White House records secret from Congress
“A federal appeals court Tuesday began considering whether a House select committee investigating the Jan. 6 Capitol riot can access former president Donald Trump’s White House records in a legal challenge testing whether a sitting president can waive a predecessor’s claim to executive privilege,” Spencer S. Hsu and Ann E. Marimow report.
Jay Powell, Janet Yellen head to Congress as inflation, variant risks rise
“U.S. lawmakers on Tuesday are expected to grill the heads of the Federal Reserve and Treasury Department over stubbornly high inflation and the possible impact of the new Omicron COVID-19 variant on what both officials view as a strong economy,” Reuters’s Lindsay Dunsmuir reports.
U.S. commander calls for more aircraft carriers in Pacific to deter China
“The U.S. Seventh Fleet’s commander called for an expanded presence by U.S. and allied aircraft carriers in the Pacific to persuade China and Russia that ‘today is not the day’ to start a conflict,” the Wall Street Journal’s Peter Landers reports.
Lunchtime reads from The Post
‘Welcome to our world’: Muslims see disparities and dangers in Jan. 6 probe
“Largely because of differences in how the law treats foreign vs. domestic terrorism cases, the [Jan. 6] defendants who were filmed battering Capitol police officers are expected to receive less time in prison than Muslims who were prosecuted on nonviolent charges of providing material support to a foreign terrorist organization — offenses such as sending money to fighters overseas or making travel plans to join them,” Hannah Allam reports.
“What’s more, U.S. Muslims resoundingly denounced Islamist militant groups and faced pressure from right-wing pundits to ‘apologize’ for attacks they had nothing to do with. Now, they’re watching in astonishment as those same pundits — like much of the Republican establishment — defend the violent, mostly White extremists at the heart of the government’s Jan. 6 probe.”
The Arctic could get more rain and less snow sooner than projected. Here’s why that matters.
“More rapidly vanishing ice could quicken sea-level rise along coastlines. Melting permafrost could release massive amounts of planet-heating gases such as methane and carbon dioxide. The ‘greening’ of once-frozen landscapes could provide fuel for ravenous wildfires that spew more greenhouse gases into the air and further warm the atmosphere,” Brady Dennis and Kasha Patel report.
- “That shift toward a rain-dominated reality, researchers wrote, could come ‘approximately one or two decades earlier’ than expected. Such a change could have ‘implications for the stability of social-ecological systems in the Arctic and the rate at which systems changes occur,’ they added.”
“'What happens in the Arctic doesn’t stay in the Arctic,' Michelle McCrystall, a lead author of Tuesday’s study and a post-doctoral researcher at the University of Manitoba, said in an interview."
… and beyond
Jake Sullivan gets the Leibovich treatment
“Washington has long been captivated by fallen star narratives. This has made Mr. Sullivan a figure of fascination in recent months, something between sympathy and schadenfreude. His daily mission of managing a sprawling national security apparatus through simultaneous crises and headaches — growing tensions with China, healing a rift with France over a nuclear submarine deal, cyberattacks — has made Mr. Sullivan the face of a foreign policy team that has endured criticism from many directions, most pointedly over Afghanistan,” the New York Times’s Mark Leibovich reports.
- The question: "… is whether Mr. Sullivan, 45, lauded as a ‘once-in-a-generation intellect’ by Mr. Biden and ‘a potential future president”’ by Mrs. Clinton, can recover from a messy year of foreign policy predicaments.”
- Two problems: “Supporters of Mr. Sullivan see two structural complications to his role. For starters, he is in a position of enormous responsibility but circumscribed authority. Condoleezza Rice, a national security adviser and secretary of state under President George W. Bush, described the job in her memoir as “rarefied staff.” Mr. Sullivan is also a product of Washington’s insular foreign policy establishment, a cohort whose traditional support for muscular U.S. foreign policy interventions has fallen out of favor across the political spectrum in the aftermath of the wars in Iraq and Afghanistan.”
- The problem: “Mr. Sullivan has told colleagues that he is determined not to have his tenure defined by the bloodshed in Afghanistan.”
The rise of omicron
Omicron is jolting markets and prompting travel bans …
New info shows omicron spread wider earlier than thought
“New findings about the coronavirus’s omicron variant made it clear Tuesday that the emerging threat slipped into countries before their defenses were up, as two distant nations announced their first cases and a third reported its presence before South African officials sounded the alarm,” the AP's Raf Casert and Andrew Meldrum report.
Existing vaccines might not be effective against omicron variant right away, Moderna CEO says
“Stéphane Bancel told the Financial Times that it would take months for pharmaceutical companies to manufacture new variant-specific doses to address omicron, as public health officials and vaccine makers worldwide examine the tangible impact of the largely unknown variant,” Adela Suliman and Timothy Bella report.
Omicron, found in Europe 11 days ago, jolts markets on vaccine fears
“The chief executive of drugmaker Moderna (MRNA.O) set off fresh alarm bells in financial markets on Tuesday with a warning that existing COVID-19 vaccines would be less effective against the new Omicron variant than they have been against Delta,” Reuters’s Ludwig Burger and Emma Thomasson report.
China says Winter Olympics will proceed as planned despite Omicron challenge
“China expects to hold the 2022 Winter Olympics ‘smoothly’ and on schedule, despite challenges posed by the emergence of the new Omicron coronavirus variant, foreign ministry spokesman Zhao Lijian told a regular daily briefing on Tuesday,” Reuters reports.
The Biden agenda
… and Biden grapples with the political fallout
Federal agencies won’t seriously discipline vaccine holdouts until next year, White House tells unions
“The American Federation of Government Employees said Monday that administration officials have told the union that agencies for now will continue offering counseling and education to the roughly 3.5 percent of workers who have yet to receive a vaccination or request an exemption,” Eric Yoder and Lisa Rein report.
With scant information on omicron, Biden turned to travel ban to buy time
“The scramble among White House and public health officials on Thursday night and Friday morning was a reminder that the United States remains vulnerable to a virus that is still spreading, unchecked through largely unvaccinated parts of the world — a problem that is well beyond the control of any global leader. And it once again highlighted the political dangers for Mr. Biden and his party if a new wave of infections derails the country’s economic recovery and return to some semblance of normalcy,” the NYT’s Michael D. Shear and Sheryl Stolberg report
Covid looms over Biden’s presidency, once more and always
“Poll after poll reflects a sense of unease within the nation, as people gear up for another holiday season shadowed by a surge in virus cases. Americans are frustrated and antsy and increasingly they have taken to blaming the man behind the Resolute Desk,” Politico’s Jonathan Lemire reports.
Biden’s slow political confirmations, visualized
Hot on the left
Opinion: Lauren Boebert is what George W. Bush called the ‘worst of humankind’
“I’m old enough to remember when Republican leaders still had souls,” columnist Dana Milbank writes.
"Democrats ought to call the bluff of those Republicans who insist they be given the chance to police their own ranks. That’s the excuse Tom Cole (Okla.), ranking Republican on the Rules Committee, used when he opposed punishing [Rep. Paul Gosar (the Arizona Republican who posted an anime video of him killing Rep. Alexandria Ocasio-Cortez.] ‘The majority can and should leave the matter up to Leader [Kevin] McCarthy and the Republican Conference,’ he said when letting Gosar off the hook. He similarly excused [Rep. Marjorie Taylor] Greene, who before entering Congress also embraced antisemitic comments and a remark about assassinating House Speaker Nancy Pelosi.
And the House GOP Conference continues to be embroiled in a fight over her Islamophobic comments:
This Trump critic weighed in:
Hot on the right
Opinion: The case against abortion
“A striking thing about the American abortion debate is how little abortion itself is actually debated,” the NYT's Ross Douthat writes. He breaks down the anti-abortion argument here:
“A distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.”
- “We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law.”
Today in Washington
At 3:50 p.m., Biden will visit Dakota County Technical College in Minneapolis-St. Paul, Minn., where he will deliver remarks at 4:30 p.m.
The president will depart Minnesota at 5:45 p.m. to return to the White House, where he is expected to arrive at 8:05 p.m.
Stephen Colbert made the case for more Hanukkah movies. Here are a couple of clear winners: “Home For the Challah-days” and “A Whole Latke Love.”
Thanks for reading. See you tomorrow.