12/09/2014 04:06 pm ET Updated Dec 06, 2017

Sometimes Congress Needs a Kick in the A*#

Four months of conflict, over 1,100 airstrikes, and 3,000 U.S. advisers later, the U.S. Senate is finally preparing to hold hearings and begin the work of drafting a new Authorization of the Use of Military Force for the U.S. operation against ISIL. For lawmakers like Sen. Tim Kaine of Virginia, Chris Murphy of Connecticut, and Rand Paul of Kentucky, the start of the drafting process is a long time coming; all three have been vocal about the inability of Congress to fulfill its constitutional responsibility on matters of war and peace, and as members of the committee responsible for passing AUMF's, all three have the weight and power to force the issue.

Under an agreement between Sens. Robert Menendez and Bob Corker, the respective chairman and ranking member of the Foreign Relations Committee, Secretary of State John Kerry senior Obama administration official will be slated to testify about ongoing anti-ISIL operations on Tuesday, December 10. This will be followed by a closed-door work period where AUMF language will be drafted, culminating in mark-up session later in the week.

Declaring war or authorizing the Commander-in-Chief to deploy U.S. Armed Forces is the most weighty and important duty that Congress possesses under the Constitution. Yet in a risk-adverse Congress, it took a completely unconventional (some would say, ridiculous) maneuver by a junior senator from Kentucky to put the AUMF issue on the committee's docket. What was supposed to be a benign and routine meeting of the committee -- approving a few ambassadors and passing a bill expanding clean water to poor communities around the world -- turned into heated discussion about war and peace and whether the Congress should begin to draft its own AUMF for a war that has been ongoing since August 8.


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As cogently highlighted by Martin Matishak of The Hill, the boring water bill suddenly transformed into a vehicle for approving President Barack Obama's military actions against the Islamic State in both Iraq and Syria. In a move that nobody on the committee expected, Sen. Rand Paul attached his ISIL Declaration of war to the water bill, infuriating other Republican lawmakers in the room who saw the maneuver as, to put it blunt, a stupid attempt to rush the committee into drafting its own authorization against ISIL. Even Democrats were conflicted and puzzled by Paul's attempt, despite practically the entire caucus calling on the Congress to pass an authorization specific to ISIL in both Iraq and Syria.

Sen. Paul has irritated his fellow Republican colleagues a number of times in the past, many of whom view his strict interpretation of the Constitution as an obstacle to the president's power to operate as Commander-in-Chief. But if Paul's goal last week was to force the issue after months of dithering and back-and-forth between the White House and the congressional leadership, he succeeded with flying colors. Call Paul's gyrations shallow, unfounded, or a "scene out of mayberry," as Bob Corker described it, but the fact is that were it not for Paul's legislative dance, Congress would have once again kicked the AUMF down the road until next year. If the Senate was unwilling to debate a new AUMF over the previous four months, it was a near-certainty that the body was not going to do so during the last week of its current term.

Is the last week of a lame-duck session the optimal time for Congress to begin taking about a new AUMF? The answer is obvious: absolutely not. Five Democratic senators will be leaving their posts in a week, having lost their re-election bids, and five others are retiring. The appropriate time for Congress to act would have been in the beginning of August when U.S. combat aircraft were again flying in Iraqi airspace, or even in late September, when U.S. operations against ISIL expanded into Syria. Yet for several reasons, whether it was politics, giving the administration the benefit of the doubt, or waiting for President Obama to send over his own AUMF draft to lawmakers, Capitol Hill was unwilling to begin a discussion that the Constitution requires them to do. The choice for Sen. Paul (backed up by Sen. Kaine) was clear: either wait for another several weeks, or use a water bill to force the issue onto the docket.

Even if outgoing Senate Majority Leader Harry Reid does not schedule a floor debate on an AUMF this week, as is likely, at least the Foreign Relations Committee will have gotten the ball rolling by voting and passing a resolution. That's the most Americans can hope for from the 113th Congress.