Kaine warns that without authorization Congress permits pre-emptive war

Hours after the U.S. and allies for the first time launched airstrikes against Islamic State militants in Syria, Sen. Timothy M. Kaine, D-Va., warned Tuesday that without giving President Barack Obama clear authorization for such action, Congress is essentially accepting the “Cheney doctrine” of pre-emptive warfare.

“The president has indicated that these missions are justified by the 2001 and 2002 authorizations by Congress. I think that this argument is an extremely creative stretch by some extremely creative lawyers,” Kaine said during a discussion forum at the Center for American Progress Action Fund, a nonpartisan public policy research and advocacy organization in Washington.

While Congress last week agreed to equip and train Syrian rebel forces, it has not specifically authorized a new war. The Obama administration is now relying on a 2001 congressional resolution that authorizes the use of U.S. armed forces against those responsible for the terrorist attacks of Sept. 11, 2001.

“ISIL did not perpetrate the attacks of 9/11. ISIL was not formed until after 9/11. Calling ISIL a perpetrator of the 9/11 attacks is to basically torture the English language, and I would view it as essentially falling back into pre-emptive warfare that Congress rejected,” said Kaine, using an acronym for the group.

After 9/11, then-Vice President Dick Cheney had favored pre-emptive military strikes against potentially threatening nations or organizations.

Since June, Kaine has pushed the White House to seek congressional authorization for using military force against the Islamic State. Last week, he introduced legislation that would limit such actions to one year — forcing Congress to renew it — and that would not allow the use of combat troops on the ground.

“The president shouldn’t be doing this without Congress,” Kaine said Tuesday. “The initiation for military action must come from Congress; the Constitution is very clear on that.”

The framers understood clearly that the president as commander in chief would have a solemn obligation to defend the nation immediately, especially if Congress is in recess, Kaine said. Without sanction by Congress, he said, the president cannot go beyond the line of defense.

“Constitutionally, the matter is clear. The president does not have Article II power to go on offense against ISIL unless they are involved in an actual ongoing or imminent threat against the U.S., and there is no evidence that they are, as indicated by other administration testimony,” Kaine said.

In January, Kaine teamed with Sen. John McCain, R-Ariz., to introduce the War Powers Consultation Act of 2014 aimed at reforming the 1973 War Powers Resolution.

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