Mac Thornberry’s is not a name that generally sets the political world abuzz. The diffident rancher and lawyer from the Texas panhandle represents a congressional district with a bigger geographic footprint than 13 states. His district is a very conservative one, as evidenced by two facts: First, the Democrats didn’t even bother running anybody against him last time around, though a Libertarian and a Green-party candidate managed to keep him down to 91 percent of the vote; second, my family are constituents, and though they are not unusually conservative compared with their neighbors, they are not quite convinced that Thornberry — ACU rating 96 percent — is entirely reliable. During a conversation in his Washington office last week, Thornberry offered a slightly rueful smile when presented with that second datum — it’s clearly not the first time he has heard it.
He is not a bomb-thrower, but Thornberry, widely considered to be the chairman-in-waiting of the House Armed Services Committee, has just stepped into the middle of one of the most bitter and most important debates of our time: the legal basis of what we are still calling (inaccurately) the “war” on terror, the limits of presidential power in that project, and the need for meaningful, formal oversight of the enterprise by Congress.
If it were to become law, Thornberry’s Oversight of Sensitive Military Operations Act would create something for which there is a crying need in the war on terror: an opportunity for Congress to say “No” to the president.
The bill has been characterized as a response to the controversy surrounding the use of armed drones, but the legislation in fact makes no mention of unmanned aircraft. It is considerably broader than that. Setting aside Afghanistan (and other future war zones for which the use of military force has been specifically authorized), Thornberry’s bill would require the military not only to formally brief Congress in writing on all kill or capture operations overseas but also would demand that the military come forward with specific legal justification for those operations, including the legal basis for the selection of targets. The question of legal justification is a sticking point: The preferred method of the Obama administration thus far has been to keep its legal reasoning secret and the memos outlining it classified, a particularly worrisome habit for an administration that has claimed for itself the power to kill American citizens not engaged in anything that could reasonably be described as combat.
The bill, Thornberry says, is an opportunity for Congress to “push back” against an overreaching presidential administration — now, or in the future.
Thornberry manages a neat political trick, being more hawkish than the president while standing with one foot in the camp of Senator Rand Paul and others concerned about the implications of the argument that in the war on terror the battlefield is everywhere, from Yemen to Yonkers. Immediately after the president’s overhyped national-security speech last week, Thornberry shared some critical observations:
Most disturbing to me in the president’s speech today was the idea that we can simply declare al-Qaeda beaten and go back to the pre-9/11 era. When he said that these issues of national security are serious ones, which we should not gloss over, I agree. Wishing the defeat of terrorists does not make it so. But the president seems to gloss over what it takes to truly defeat al-Qaeda. Under what legal authority would he take action to prevent terrorist attacks in the future without an authorization for the use of military force? Is he asking for a free hand to do whatever he thinks best, or does he think law enforcement can handle the entire threat?
Thornberry advocates revising the Authorization for the Use of Military Force, which has been stretched to the point of absurdity. He describes himself as “concerned” about, among other things, the fact “that the administration took military action in Libya without congressional approval.”
While the secretary of defense would be required to notify Congress in writing of particular missions only after the fact, the legal reasoning behind those missions and the selection of their targets — arguably the more important question — would have to be disclosed within 60 days of the bill’s passage. If Congress is not persuaded by the case put before it, then it would have the opportunity to respond in a specific way to specific military practices. As things stand, if Congress is displeased with the conduct of the war on terror, its options are basically limited to repealing the AUMF or defunding the entire thing. Thornberry’s bill would give members of Congress a scalpel to replace the legislative meat ax currently in their hands.
“It lets Congress push back,” Thornberry says.
It probably will not be enough to satisfy Senator Paul and those who share his concerns, and it does nothing to address the specific question of the administration’s targeting U.S. citizens outside of combat. But it does move the action into the congressional theater, where it belongs, rather than the judicial one, where it does not.