[Congressional Record Volume 162, Number 171 (Wednesday, November 30, 2016)]
[Senate]
[Pages S6594-S6595]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  USE OF MILITARY FORCE AUTHORIZATION

  Mr. KAINE. We began Operation Inherent Resolve, which is a war 
against ISIS, on August 7, 2014. President Obama announced at the time 
that we were engaging in targeted airstrikes against ISIS because of 
their advance toward Erbil. There is a U.S. consulate in Erbil, and so 
that was part of the President's inherent powers to defend the Nation--
to protect our consulate.
  Within a very few weeks, we had completely protected American 
interests, and President Obama said now is the time to go on offense 
against ISIS. The President appeared before the American public in a 
televised speech the evening of September 10, 2014, and said that we 
had taken care of the imminent threat to the United States but now we 
needed to go into an offensive war to ``degrade and ultimately destroy 
the Islamic state.'' And that description of what the mission is has 
now been broadened, in the words of current Secretary of Defense Ash 
Carter, to focus on ISIS's lasting defeat.
  Since the war against ISIS began in August 2014, more than 5,000 
members of the U.S. military have served in Operation Inherent Resolve 
either in Iraq or Syria. Right now, just as an example, from my home 
State, there is a carrier, the USS Eisenhower--homeported in Norfolk--
that is in the gulf now as part of Operation Inherent Resolve. The U.S. 
military has launched over 12,600 airstrikes. We are carrying out 
special forces operations. We are assisting the Iraqi military, Syrians 
fighting the Islamic State in Syria, as well as the Kurdish Peshmerga 
in the northern part of Iraq.
  Because of the work of American troops and those they are working 
with, we have made major gains against ISIS in northern Iraq. The 
territory they control in northern Iraq has dramatically shrunk. We 
have made major gains in shrinking their territory in northern Syria, 
and that is to be credited to brave folks like CPO Scott Dayton. But 
the threat posed by the Islamic State continues, and increasingly, as 
their battle space shrinks in real estate, they undertake efforts off 
that battleground to try to destabilize us around the world.
  This fight against ISIL, which is a key--maybe the key--national 
security priority involving U.S. combat operations in Iraq and Syria, 
will likely continue for the long foreseeable future, even after the 
complete liberation of Mosul and Raqqa, which I am confident will 
occur. The war has cost $10 billion--800 days of operations at an 
average of $12.6 million a day.
  I began by honoring Scott Dayton, but Scott Dayton is not the only 
military member who has lost his life in this war. Five have been 
killed in combat in total, and 28 American servicemembers have lost 
their lives supporting Operation Inherent Resolve. As we speak, there 
are more than 300 special forces now in Syria fighting a very complex 
battlefield where Turkish, Syrian, Russian, Iranian, Lebanese 
Hezbollah, and Kurdish forces are operating in close proximity, as 
evidenced by recent developments and the growing humanitarian 
catastrophe in Aleppo.
  I continue to believe--and I will say this in a very personal way as 
a military dad--that the troops we have deployed overseas deserve to 
know Congress is behind this mission. As this war has expanded into 2-
plus years--I don't know whether that would have been the original 
expectation--with more and more of our troops risking and losing their 
lives far from home, I am concerned--and again raise something I have 
raised often on this floor--that there is a tacit agreement to avoid 
debating this war in the one place where it ought to be debated--in the 
Halls of Congress.
  The President maintains that he can conduct this war without a new 
authorization from Congress, relying upon an authorization that was 
passed on September 14, 2001. When the new Congress is sworn in, in 
early January--I think 80 percent of those Members of Congress were not 
here when the September 14, 2001, authorization was passed, so the 80 
percent of us who were not here in 2001 have never had a meaningful 
debate or vote regarding this war against ISIL.
  I have been very critical of this President. I am a supporter of the 
President. I am a friend of the President. I respect the Office of the 
President. But I have been very critical of this President for not 
vigorously attempting to get an authorization done. When the President 
spoke about the need to go on offense against ISIL in September of 
2014, it took him 6 months from the start of hostilities to even 
deliver to Congress a proposed authorization. I actually think that is 
the way the system is supposed to work, that the President delivers the 
proposed authorization. But I have also been harshly critical of the 
article I branch because regardless of whether the President promptly 
delivers an authorization, under article I of the Constitution, it is 
Congress that has the obligation to initiate war.

[[Page S6595]]

  As the current Presiding Officer knows because he is not only a 
Senator but a historian, the founding documents of this country are so 
unusual still today in making the initiation of war a legislative 
rather than Executive function. Madison and the other drafters of the 
Constitution knew that the history of war was a history of making it 
about the Executive--the King, the Monarch, the Sultan, the Emperor--
but we decided that we would be different and that war would only be 
initiated by a vote of the people's elected legislative body and at 
that point would be conducted by only 1 commander-in-chief, not by 435. 
We have not had the debate. We have not had the vote.
  This has been ironic because for 4 years I have been in a Congress 
that has been very quick to criticize the President for using Executive 
action. This is an Executive action that most clearly is in the 
legislative wheelhouse; yet it has been an Executive action that the 
body--and I am making this as a bipartisan and bicameral comment--has 
been very willing to allow the President to make.
  I introduced a resolution for the first time to get Congress to 
debate and do this job in September of 2014, 2 days after the President 
spoke to the Nation about the need to take military action against 
ISIL. That authorization led to a Senate Foreign Relations Committee 
hearing and a vote in December of 2014 to authorize military action 
against ISIL, but that committee resolution never received any debate 
or vote on the Senate floor.
  In 2015, working together with a Senate colleague from Arizona, 
Senator Flake, we decided we really needed to show our opposition to 
ISIL. Our belief that appropriate military force from the United States 
should be used against them was bipartisan, and so we introduced a 
bipartisan authorization of military force on June 8, 2015, in an 
attempt to move forward with some congressional debate on this most 
important issue. Aside from a few informal discussions in the Senate 
Foreign Relations Committee, there has never been a markup, never been 
a discussion, never been a committee vote or a floor vote.
  So 2\1/2\ years of war against the Islamic State and 15 years now 
after the passage of the authorization in September of 2014, we see 
that authorization has been stretched way beyond what it was intended 
to do. The authorization of September 14, 2001, was a 60-word 
authorization giving the President the tools to go after the 
perpetrators of the attacks of 9/11. ISIL didn't exist on September 11, 
2001; it was formed in 2003. President Obama recently announced that 
the authorization is now going to be expanded to allow use of military 
action against Al-Shabaab, the African terrorist group--a dangerous 
terrorist group, to be sure--but Al-Shabaab did not begin until 2007.
  So an original authorization that was very specific by this body to 
allow action against the perpetrators of the 9/11 attacks is now being 
used all over the globe against organizations that didn't even exist 
when the 9/11 attacks occurred. Just to give an example, the 2001 
authorization has been cited by Presidents Bush and Obama in at least 
37 instances to justify sending Armed Forces to 14 nations. Pursuant to 
the authorization to go after the perpetrators of the 9/11 attacks, we 
have authorized military action in the Bush and Obama administrations 
in Libya, Turkey, Georgia, Syria, Iraq, Afghanistan, Yemen, Eritrea, 
Ethiopia, Djibouti, Somalia, Kenya, and the Philippines, as well as 
authorizing military activity in Cuba at Guantanamo to maintain 
detainees.
  Just in the last week, the New York Times reported that President 
Obama is expanding the legal scope of the war against Al Qaeda by 
easing targeting and restrictions against Al-Shabaab, but again this 
was a group that didn't exist until 2007, 6 years after the 9/11 
attacks.
  Mr. President, I will conclude and say that having been very vocal 
about this issue for a number of years, it has been disappointing. 
Although we are all used to not getting our way in all kinds of ways, 
it has been disappointing to me that we have not been willing to take 
up this matter.
  I do think a transition to a new administration and a transition to a 
new Congress that will be sworn in, in early January always gives you 
the opportunity to review the status of affairs and make a decision 
about what to do. I believe it is time for us to review the progress of 
the war against nonstate terrorist groups--Al Qaeda, ISIS, Al-Shabaab, 
Boko Haram, Al-Nusra. It is time for us to review U.S. military action 
against nonstate terrorist organizations. It is time for us to redraft 
the 2001 authorization that has been stretched far beyond its original 
intent. It is time for us to recognize that this is a continuing threat 
that is not going away anytime soon. But I guess what I will say is 
most important is that it is time for Congress to reassert its rightful 
place in this most important set of decisions. Of all the powers we 
would have as Congress, I can't think of any that are more important 
than the power to declare war. I view that as the most important, the 
most difficult, the most challenging, the power we should approach with 
the most sense of gravity. That is the most important thing we should 
do. It should never be an easy vote. It should always be a hard vote, 
but it should be a necessary vote. I think the inability or 
unwillingness of Congress to grapple with this sends a message that is 
unfortunate. It sends a message of lack of resolve to allies. It might 
even send a message of lack of resolve to our adversary.
  But what I am most concerned about are people like CPO Scott Dayton, 
people who are serving in a theater of war, who are risking their lives 
in a theater of war, who have been giving their lives in a theater of 
war and doing it without the knowledge that Congress supports the 
mission they are on.
  As I conclude, Article I and Article II allocation of 
responsibilities are not just about what is constitutional. I think it 
reflects a value, and the value is this: We shouldn't order people into 
harm's way to risk their lives unless there is a political consensus 
that the mission is worth it. Anyone who volunteers for military 
service knows it is going to be difficult, and we will not be able to 
change that. But if we are going to order people into combat and order 
them to risk their lives--and even if they are not harmed, they may see 
things happen to colleagues of theirs that could affect them the rest 
of their lives. If we are going to order them to do that, then there 
should at least be a national political consensus that the mission is 
worth it. The way the Constitution sets that up is the President makes 
a proposal, but then Congress--the people's elected body--votes and 
says: Yes, the mission is worth it.
  Now that we have had that vote, now that we have had that debate and 
we have educated the public about what is at stake, and now that we 
have said the mission is worth it, it is fair then to ask our 2 million 
Active-Duty Guard and Reserves--folks like Chief Petty Officer Scott 
Dayton, folks like my oldest son--to go and risk their lives on a 
mission like this. But if we are unwilling to have the debate and have 
the vote, it seems to me to be almost the height of public immorality 
to force people to risk and give their lives in support of a mission 
that we are unwilling to discuss.
  Again, I offer these words in honor of a brave Virginian who lost his 
life on Thanksgiving Day, November 24. I hope that the growing number 
of people who are losing their lives in Operation Inherent Resolve may 
spur this body to take this responsibility with more gravity.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN. Mr. President I thank my colleague from Virginia, who is 
always speaking up for our men and women in uniform and for our 
Nation's veterans.

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