On matters of peace and war, virtually no one seems satisfied with Congress. Constitutionally coequal to the executive, the Congress often appears more an uneasy junior partner. During the past two decades, the executive branch has expanded its authority to launch, conduct, and conceal military activity. In response, Congress—despite its formal powers to declare war, appropriate funds, and organize the armed forces—has largely deferred, putting up more of a rhetorical fight than engaging in a deliberative effort to shape American wars.
Congress, even lawmakers complain, postures more than it prescribes, overlooks more than it oversees, and passes time more than it passes laws.1 Conventional wisdom and political consultants offer congressmen good rationale: foreign policy does not typically drive elections, Americans are increasingly disconnected from both their military and the costs of war, and there are few political incentives to dig deeply into matters of war and peace.2
Today the “imperial presidency” is accepted as a given division of labor rather than seen as a counter-constitutional anomaly. And yet with the nation involved in military operations across multiple countries, and with debates about possible military interventions in Iran, North Korea, and Venezuela reaching the White House, congressional attention to the use of force should today be at a premium. The Founders were correct to vest national security decisionmaking in not only one branch of government, and history shows numerous examples of Congress positively influencing matters of war and peace. An inactive or indifferent legislature leaves power overconcentrated in the executive, while an engaged Congress may not just check presidential reach but can actively improve the conduct of American conflicts.
Today the “imperial presidency” is accepted as a given division of labor rather than seen as a counter-constitutional anomaly.
In recent years, most calls for greater congressional activism have focused on four broad categories of activity. First, the need to update the two authorizations for the use of military force (AUMFs) under which current overseas military operations are conducted. Second, restricting specific, potential military interventions (such as against Iran). The third involves matters that do not fall neatly under armed conflict for U.S. forces, such as constraining employment of American enablers in military interventions abroad, or engaging in training, equipping, advising, or accompanying partner forces overseas in conflict zones. Lastly, members have made new attempts to reform the underlying legal basis for military intervention abroad, including the 1973 War Powers Resolution (WPR).
Those exhorting the legislature either to bless or constrain military activity through a new AUMF, a refined WPR, or a clearer understanding of the American role in overseas hostilities are correct: the existing authorizations and practices are outdated and vague, and, as a matter of constitutional best practice, Congress should pass new measures that supersede the old ones. Yet recent attempts to do so have failed, and there is little prospect of change in the near future.
This fixation on use of force legislation has obscured more consequential powers that Congress possesses to shape the conduct of American wars. Members of the House and Senate should rediscover the body’s hidden strengths: the many informal tools available for influencing the course of U.S. military operations, both actual and potential. These informal tools—everything other than legislating—can be employed by members on their own or in combination. They do not require Congress to act as an institutional body across parties and chambers; rather, they can be employed by individual congressional entrepreneurs or small, ad hoc coalitions. They do not require veto-proof margins in two houses led by different parties and may evade the paralytic tendencies of increased congressional polarization.3 And they can be effective in influencing the consideration, use, and cessation of American force abroad.
This fixation on use of force legislation has obscured more consequential powers that Congress possesses to shape the conduct of American wars.
Congress’s use of informal tools has ebbed in recent years, a casualty of the departure of long-serving members, of a shift in focus from “big wars,” and of a general rise in partisanship and division. Yet its informal powers remain potent, if underrecognized and perhaps a bit unknown even to some incumbents. It is time for Congress to rediscover them and put them to work.
Background and Methodology
CNAS initiated a project to explore in depth the weakening of a key foundation of American democracy: Constitution grants Congress, not the president, the power to declare war. The fruits of this investigation will take shape in five areas: the present report, which examines the range of informal tools available to Congress; four case studies highlighting successful (and less successful) congressional engagement on military operations; a report exploring formal legislative and procedural revisions to congressional war powers; an assessment of public opinion on the legislature’s role in war making; and a review of lessons learned from war powers debates among key American allies. Findings and analysis in the present report derive from an extensive literature review, targeted interviews with congressional and executive branch staff, and the authors’ personal experiences.
Congressional watchers may push back on our characterization of the legislative branch, noting that in recent years—and 2019 in particular—both houses reasserted themselves on several national security matters. Bipartisan groups in the House and the Senate condemned the killing of Saudi journalist Jamal Khashoggi, punished Russia for a range of bad behaviors, and sought limitations on U.S. force drawdowns in Syria and South Korea.4 Congress also voted to invoke the War Powers Resolution for the first time, attempting to curtail U.S. intervention in Yemen, and this spring passed legislation requiring congressional blessing for potential military intervention in Iran.
These examples of renewed congressional activism are striking but have been highly limited in effect. The House and Senate joint resolutions directing the removal of U.S. forces from the conflict in Yemen were promptly vetoed by President Trump. He did the same for legislation that would restrict U.S. intervention in Iran, and in both cases the vetoes were sustained. Other efforts—the various proposals for new AUMFs, the efforts to modify the War Powers Resolution, and more—have fallen even shorter. While Congress can and should continue to pursue legislative means to influence use-of-force decisions, its relatively neglected informal toolkit stands as the likelier path to success.
Accepting the Invitation to Struggle
Contrary to prevailing debates, the congressional role should go well beyond formally constraining a president’s power to initiate or continue an unwise war. As it has from time to time in the past, Congress can act to improve the conduct of operations, make success more likely, help avoid bad outcomes, and test the judgments under which a president begins or ends a military intervention.
Congress can act to improve the conduct of operations, make success more likely, help avoid bad outcomes, and test the judgments under which a president begins or ends a military intervention.
There is good reason for members to do so. Members of Congress can, individually and together, wield considerable informal influence over American military interventions.5 Legislating war is not only politically difficult but can also be rigid, where policy influence leaves room for flexibility and negotiation.6 Overemphasizing formal authorization, sanctions, or appropriations measures can ignore oversight of “military intervention and conflict [that] should be continuous and focused more heavily on the conduct of campaigns long after their initiation.”7 The preparatory, preventive, and educational work ahead of and during an intervention is an area of vital Congressional concern, and here informal approaches sometimes work best.
History suggests that presidents consider congressional opinion a great deal when making use-of-force decisions, in part because these views can serve as a proxy for domestic will.8 Executives are especially sensitive to such signals “because public defeats threaten to weaken their credibility on the world scene,” whereas shared expressions of resolve may intimidate adversaries.9 George H. W. Bush, for instance, asked Capitol Hill for a last-minute authorization before launching the Gulf War in 1991, hoping to avoid “weakening his hand” in global opinion.10 Senators John McCain, Joseph Lieberman, and Lindsey Graham helped set the political conditions in which George W. Bush pursued the Iraqi “surge” strategy in 2007. Barack Obama ultimately determined not to strike Syria after its regime’s chemical attack, citing insufficient congressional support for such a move.
By exercising its informal influence, Congress can press for initiating a worthy conflict by changing public narratives and assumptions, or it can help to avoid an unwise one.
By exercising its informal influence, Congress can press for initiating a worthy conflict by changing public narratives and assumptions, or it can help to avoid an unwise one. Members of Congress can test prewar intelligence and political assessments and define likely costs and benefits. They can serve as a proxy for a broader public debate and inject a discussion of various courses of action into the body politic, well outside basement Pentagon conference rooms. Once a war is under way, Congress can question existing military and political strategies and test assessments about how the fight is going. Members can form on-the-ground perspectives, offer alternative approaches, and encourage allied involvement. Perhaps most important, they can lobby for a needed change of course, elevate the voice of stakeholders set aside by the executive branch, press for an end to failing wars, or disincentive a dangerously precipitous withdrawal where U.S. forces should stay. All this can be done without a single vote.
Case Study: Iraq
The effort to press the George W. Bush administration to change strategy in Iraq more than a decade ago provides a case in point. As early as 2003, Senator John McCain began publicly decrying the insufficient number of U.S. forces present in Iraq and calling for additional troops to help stabilize the country. This call, which was the result of a congressional delegation (CODEL) he and others made to Iraq shortly after the fall of Baghdad, had by 2004–5 expanded into a plea for wholesale change.11
McCain, joined by Senators Joseph Lieberman and Lindsey Graham, among others, sketched out an approach that would by 2007 be known as the surge—a fully resourced counterinsurgency strategy, backed by the deployment of additional U.S. brigades that would “live forward” off of bases and focus on protecting the population.
To advocate for these ideas, Senator McCain and his colleagues traveled repeatedly to Iraq, consulting with Iraqi leaders, U.S. embassy officials, military personnel ranging from privates to generals, and many others—including local Iraqis in locations well outside of Baghdad. McCain delivered speeches at a variety of outside forums and on the U.S. Senate floor, and he wrote op-eds for key newspapers. He maintained a constant presence on television news programs and gave frequent press briefings. He wrote letters to President Bush outlining possible changes in strategy and met with the president and key cabinet officers to press the case. McCain convened outside experts in his Senate office on a regular basis and passed on their analyses. Throughout this period, he and his colleagues fended off various legislative attempts to force the withdrawal of U.S. forces from Iraq and attempted to create political space in which the president and his team could change course.
When the new surge approach began in early 2007, the change in strategy—together with the Anbar Awakening that began in late 2006—brought down violence in Iraq dramatically within a year. Something, it seemed at the time, had been salvaged from the wreckage of the 2003 invasion and its subsequent mismanagement. While the amount of credit for the surge that should attend McCain’s efforts remains an open question, the end-to-end campaign that he and his colleagues waged remains instructive for members of Congress hoping to influence new use-of-force decisions.
Nothing to Oversee Here
It is difficult to get a precise sense of the degree of informal congressional oversight when it comes to use-of-force decisions. Those measures that are available, however, do not inspire huge confidence. The evident decline in such oversight has a range of origins: executive branch independence and opacity;12 the absence of political incentives for foreign policy activism; and changes in congressional culture, habit, and expectations. Those forces shape Congress’s willingness and ability to understand, shape, and evaluate executive branch behavior.
Several indicators illustrate the point:
Decline in number and effectiveness of hearings: Congressional expert Linda Fowler finds that from the 1970s to 1990, public hearings in the House held steady in number but declined in the Senate. National security hearings overall demonstrate a comparable trend; the 1991 Gulf War, for instance, generated more hearings than the Iraq war did in the 2007–09 Congress.13 Hearing topics are generally isolated to a single day rather than a series, and are often poorly attended, with members often attempting to visit more than one concurrent session.14 Analysis of the broad trends suggest that in the hearings they do attend, members receive “one‐sided information to a greater degree and are spending less time learning about potential solutions.”15
Poor intra-committee collaboration: Today’s cross-cutting national security challenges would present a jurisdictional nightmare on Capitol Hill in the best of times. Oversight requires a broad contextual picture of risks and opportunities, yet committee jurisdictional lines routinely cut off access to reporting and experts that would generate such understanding. If a priority country receives a significant assistance package, for example, hosts special operations forces performing both advisory roles and partnered operations, and has targets for lethal drone operations, each of those activities will be overseen by a separate committee, and the relevant reporting and briefings may not be shared across jurisdictional lines. While some committees and staffs maintain collaborative relationships, interviewees report that these are highly variable and personality driven, and that agencies do not always enable the information, reporting, or expert sharing that would empower more informed oversight.
Lack of executive transparency and responsiveness: Routine reporting and public data are the foundations of effective oversight but have grown highly restricted in of use of force matters. For the last three years, the Pentagon has largely refused to publicly confirm the number of U.S. forces in Afghanistan, Iraq, or Syria.16 It has declined to release key reports to Congress, including the legal and policy frameworks for the use of military force required in recent National Defense Authorization Acts.17 Interviewees report that a culture of non-responsiveness to congressional requests is increasingly widespread, and the potential for collaborative negotiation has plummeted. In many cases, “Congress’s efforts to conduct oversight of the executive branch...have become increasingly reliant on using the federal courts to enforce the legislature’s demands for information and testimony”—a slow and sometimes fruitless process with oversight opportunity costs.18
The complex security environment of clandestine and legally murky military operations, the frequent, high stakes clashes with Iran and North Korea, and the decay of traditional oversight markers suggest it is time to rebuild and strengthen the congressional oversight toolkit. Though partisan polarization may limit the effectiveness of legislative checks, there is real potential for Congress to deploy its informal tools, as enumerated below. While these ideas and activities are not new, their practice has diminished, and embedding such steps in a long-term strategy has all but disappeared. We suggest that members and staffs recommit to three activities in the oversight toolkit: obtaining and sharing information (buttressed by more organized transparency), injecting ideas into the decision process, and shoring up the foundations of oversight.
While these ideas and activities are not new, their practice has diminished, and embedding such steps in a long-term strategy has all but disappeared.
Information is the lifeblood of oversight. Members of Congress require information to form judgments, understand the requirements for new legislative proposals, evaluate performance, understand alternative assessments and proposals, and educate and empower both the broader public and specific stakeholders. The executive branch—with its size, on-the-ground access, access to classification authority, and communications platforms—has a natural advantage in information gathering and narrative setting. Numerous studies, however, have demonstrated that Congress can play a vital role in encouraging, convening, and organizing public and alternative sources of information, and can even exhibit informational advantages over the stovepiped executive branch.19 Shifts in policy have, for example, resulted from Congress asserting narratives different from those offered by a president—as in Somalia, where members helped change perceptions that the humanitarian crisis was intractable; or in Iraq in 2006, when members rebuffed the Bush administration’s metrics and reports of success; or in Yemen more recently, where members spotlighted rampant human rights abuse by U.S. partner forces.
Congress is well placed to obtain and share information about a pending or ongoing conflict. Experts typically point to traditional oversight tools, such as hearings and formal written queries, as the primary means by which Congress can elicit facts and metrics. But these work best when augmented by the suite of formal and informal processes and procedures members and their staffs can use to educate themselves, the public, and the administration. These include:
Hearings: Committee hearings offer members the opportunity to receive formal testimony and briefings, and to question witnesses on the record, including follow-up “questions for the record” (QFRs). As a rule, the number of hearings on a given issue is not by itself a metric of effective oversight. Instead, high quality, well-attended hearings pursuing a line of inquiry over time tend to produce the most meaningful insights.20 Hearings can draw the public eye and deepen understanding of military interventions by featuring strong expert witnesses, coordinated questioning, and a sense that the area of study is more than a one-off set of members’ statements aimed at the cameras. And as artificial as congressional theatrics may appear to those in the room, they can produce effects: as two experts describe it, “The public posturing, turns of praise and condemnation, rapid-fire questioning, long-winded exhortations, pithy Shakespearean references, graphs, timelines, and pie charts that fill these highly scripted affairs are intended to focus media attention and thereby sway the national conversation surrounding questions of war and peace.”21
Briefings: Requesting and participating in regular intelligence, military, and policy briefings from a variety of executive branch officials, in both classified and unclassified formats, allow members and staff to get the “official” story of military operations in a less formal setting than televised hearings. Briefings also serve to encourage level-setting in joint understanding of authorities, risk, threats, and complex vocabulary, both across member offices and between legislative and executive branch counterparts. Bipartisan briefings, or sequential majority/minority briefings, can prove especially effective for generating transparency and responsiveness.
Congressional delegations: CODELs to war zones and other relevant locations create invaluable opportunities to assess ground truth. CODELs and staff delegation trips often provide members and staffers with a wider and sometimes more accurate perspective than that of their executive branch counterparts, who can both be more constrained in their travel and receive different treatment when overseas. That said, CODELs can also tend toward dog-and-pony shows that offer visitors a carefully curated version of reality. Key to such trips is seeking deviations from any scripted agenda in order to get candid or unofficial assessments, whether this involves setting aside a prepared briefing for informal questions, requesting last minute meetings with local experts and stakeholders, or challenging assumptions with validated facts and analysis. Also key is making repeated trips to particular locations over time, rather than attempting to fly in once, take the measure of a situation in a day or two, and return to Washington replete with firmly held convictions.
Expert consultations: Convening outside experts in particular issue areas, including those critical of existing policy, provides members and staffs with alternatives to prevailing narratives, assessments, and facts on the ground. Such sessions are all the more important given trends in hearings toward one-sided expert witnesses and limited participation in question periods. After 9/11, Capitol Hill’s trust in the Department of Defense (DoD) to manage information, operations, and evaluations soared—thereby aligning with the military’s standing as most the most trusted institution in America. But particularly as U.S. military presence diminished in major theaters and smaller “by-with-and-through” deployments became the norm, the Pentagon’s more limited presence visibly constrained its information advantage. Likewise, formal assessments such as the Iraq Study Group and the Afghanistan Papers challenged DoD’s credibility in measuring its operational success and understanding local conditions. Think tanks, advocacy groups, grassroots organizations, academics, and other third-party stakeholders’ experience, historical expertise, and on-the-ground connections offer insights unavailable even to the most widely traveled members of Congress and their staffs. Members have recently challenged DoD briefings on Saudi and Emirati operations in Yemen with facts acquired through such external consultations; 30 years ago, their colleagues did the same on the security dynamics of Somalia; and three decades before that did so with Vietnam.
Investigations: Congressional committees may launch investigations of specific aspects of a conflict, its costs and impacts, or operational decisions. The most well-known investigations in national security circles have become deeply polarized, but, performed effectively, they serve as crucial mechanisms to level-set congressional and public understanding of complex policy challenges. Scholarship from investigative experts suggests three measures to strive for in effectiveness: quality bipartisanship (“whether it addressed issues of importance to the public, made use of appropriate investigative techniques, uncovered useful information, and was able to produce a consensus on the facts”); credibility in the eyes of experts, policymakers, and the public; and the “extent to which it led to changes in policy or practice.”22
Reports and notifications required by law: Congress can mandate new executive branch reporting on key aspects of a military effort, and it can also use existing reporting as a source of authoritative information. A wide range of reporting requirements governs matters on the spectrum of military intervention. From arms sales to advisory missions to combat-equipped deployments to drone strikes, committees receive notifications, updates, metrics, and spending reports. Close attention to these can highlight areas meriting further investigation and generate a comprehensive picture of executive branch activities. Such reports are not, however, always distributed across all national security committees, and, due to classification or administration preference, are not always made public. One staffer noted in an interview that while notifications serve as information, they are also “relationship enablers”—if the notifications go only to limited audiences, the relationships will be similarly limited. Use of reports as oversight should address these problems more directly.
A frequent criticism of mandatory congressional reporting is that members and staffs simply do not read what the executive branch produces. This is often true, but ignores other potential functions of reports, including to “shift the burden of monitoring the behavior of agencies to other groups.”23 Reports allow interest groups and the media to highlight notable concerns, such as in arms sales proceedings. They also often demand policy, legal, and evaluative rationales from the executive branch that should, in theory, cause officials to think harder about their decisions and take ownership of them—as in the Legal and Policy Justification of Use of Force report. Finally, reports can spur interagency awareness and consultation that might not occur in a fractured national security policy system. In the case of the Global Security Contingency Fund, for instance, Congress required both State-DoD “dual key” authorization and reporting to multiple committees.
Other powerful information gathering tools include:
Letters to agencies and requests for information: It has been said that one letter from one member of Congress can tie up a federal agency for six weeks. Though sending such a letter may not be a good idea, the axiom underscores the potential power of such a seemingly pedestrian missive. Letters constitute useful opportunities to flag congressional interest and concern, particularly when the concern crosses party lines and ideologies. Responses may reap some of the same benefits as reports, but may also garner higher level attention and be less subject to bureaucratic censoring.
Meetings with foreign officials: Representing themselves rather than the U.S. government, members of Congress often have access to the highest levels of foreign governments and can both obtain information and convey messages.
Regular intelligence: The members and staff of national security committees, including the House and Senate Intelligence, Armed Services, and Foreign Relations Committees, have access to regular intelligence reporting as well as the opportunity to receive additional information about areas of particular interest.
These approaches will only partially address a trend toward executive opacity and outright refusal to comply with requests for information. Some experts have opined on the merits of legal strategies to force executive compliance in requests for information; we will leave that consideration aside. A more productive path would aim at transparency: first by collating, publishing, and tracking requests from members of Congress for information on America’s wars (today, these requests are largely publicized by individual members, if at all, and rarely shared among offices); next by tracking executive responsiveness; and finally, and crucially, by publishing executive branch responses when unclassified.
Merely gathering information, of course, is insufficient to influence use-of-force decisions. Congress can go well beyond by actively injecting ideas into the decision-making process. Here, the power of members of Congress as elites to drive coverage and shine a spotlight on ideas is unparalleled; as some experts have observed, Congress stands out as the group of individuals most able to generate dissent against an administration’s policy.24 Others note that “congressional opponents of administration policy can raise the political costs of pursuing a policy course that strays too far from congressional preferences.”25 They are also capable of moving beyond public framing to what may be termed “policy entrepreneurship: proposing solutions, strategizing, and ‘working the system’ to organize others and provide leadership.”26
Congress’s tools for shaping public debate and offering policy alternatives include:
Formal statements: Members can use floor statements, press releases, hearing statements, and other opportunities to shape policy and the debate within which it is crafted. Such commentary can be influential in driving both local and national media coverage of foreign policy issues. To cite one prominent example, media coverage of the decision to intervene in Iraq rose significantly around the October 2002 authorization debate, and dropped precipitously immediately after the vote, despite continued controversies and even as war grew nearer.27
Public speaking: Similar dynamics attend to outside speeches at think tanks, universities, advocacy groups and other organizations—with the potential added bonus of broader elite engagement and wider, non-congressional media attention. Senator McCain’s remarks in 2003 at the Council on Foreign Relations, for instance, in which he expressed support for a troop surge in Iraq, earned him an immediate invitation to the Pentagon to meet with Secretary Donald Rumsfeld.
Media engagement: Whether in op-eds or news program appearances or interviews, members of Congress act as quasi-forward correspondents in Washington for local media and elite signalers in national media. Scholars of political communications observe that reporters often “take cues from Congress when establishing the content and scope of foreign policy coverage. Rather than forming independent judgments, journalists turn to other political elites, most frequently senators and representatives, to evaluate White House arguments on behalf of military deployments.”28 Arguments for or against particular policies in local media coverage tend to reflect the ideas highlighted in current congressional debate.
Letters to leaders: While the majority of letters to the President, federal agencies, or foreign leaders are fielded by legislative affairs staff several tiers removed from decisionmakers, this is not always the case. A well-timed, compelling letter from a key member of Congress can help sway approaches in the executive branch and even inform or incentivize foreign governments to change policy.
Committee and member reports: House and Senate committees, and even individual members, have researched particular decision points or policy questions and published the results. These reports can affect executive branch decisionmaking, even if (or perhaps especially when) developed with the quiet cooperation of sympathetic administration officials.
Report language: Report language conveys the intent of Congress or of the committee that marked up a particular bill, offering specific guidance, interpretations, or even specific restrictions on policy or appropriations. The nonbinding committee reports that accompany legislation draw influence from the committee’s relationship with a given agency—and the attendant fear in agencies that nonbinding report language this year, if ignored, will become mandatory statute next year.29 Members and staffers have been known deliberately to exacerbate this anxiety so as to ensure executive branch attention and drive potential policy changes.
Meetings with foreign officials: Both in Washington and abroad, members of Congress represent a key constituency for a wide variety of foreign officials, and their ideas are often considered closely, especially, but not exclusively, by leaders who rely on congressional appropriations.
Tools such as those enumerated here would become more effective by strengthening the foundations of congressional oversight. Several landmark studies over the past decade have highlighted the need to address congressional capacity, usually by recommending a spending and hiring spree to make up the gap in expertise. The routine measures of congressional capacity—personal and committee staff—have declined over the years, as has the staff of nonpartisan support agencies like the Congressional Research Service (cut by 29 percent since 1985), the Government Accountability Office (41 percent), and the Office of Technology Assessment (eliminated).30 While a trained, expert, and empowered staff is vital, Congress can also take steps to extend its current capacity within its present resources. Some experts recommend the logically attractive but politically difficult work of streamlining committee jurisdictions; a less challenging step would establish a more collegial division of labor between national security committees and personal staffs. Such efforts should include setting expectations for joint briefings, more freely sharing information, and widening the audience for mandatory reporting related to military operations and security matters. Others have recommended wider access to Top Secret/Sensitive Compartmented Information clearances for members’ personal staffs to enhance their roles in the oversight process.31
Perhaps most important is the need to build trust and strengthen relationships between members, their staffs, and the agencies they oversee. Here, the most important actor is not necessarily Capitol Hill, though it can be. A great deal of oversight activity presumes a low trust, adversarial environment between the legislative and executive branches, but there are also models wherein trust and transparency drive a collaborative oversight relationship.32 Several Department of Defense staffers cited this dynamic as highly preferred, but noted specific barriers to it. Substantive policy staff are not trained or encouraged to connect with their Hill counterparts, and are not taught that oversight is a relationship rather than a series of one-sided demands and critiques. Career and military officials should be encouraged to form relationships with their Hill counterparts and include them in their office orientations, just as interagency counterparts may be. Likewise, they should receive full training on committee portfolios and jurisdiction and the benefits of productive oversight. Too many interviewees for this report cited a culture of holding Congress at arm’s length and treating legislative overseers simply as adversaries.
Part of trust building requires resetting the equilibrium of expertise. In interviews, a frequent and mutual critique by both Hill and executive branch personnel was lack of understanding of the authorities or activities they are tasked with overseeing or guiding. Long-serving executive branch officials naturally express frustration at the fresh (and sometimes aggressive) approaches of less-experienced congressional staff. Legislative staff, on the other hand, may have more experience working on particular issues than executive branch counterparts—especially if they have been involved in writing relevant legislation or if an administration is new and officials recently seated. This inequality of expertise and experience will never be fully leveled, but it can be mitigated to some degree by pursuing productive relationships across branches.
Case Study: Somalia
Conventional wisdom usually portrays “the CNN effect” as a most significant driver of the U.S. decision to intervene in Somalia in December 1992 and withdraw forces in March 1994. But Congressional research staffer Ted Dagne and former Representative Harry Johnston concluded in their history of Congress’s role in Somalia that “Congressional concern about the Somalia situation, expressed through hearings, trips, letters, and informal contacts, had clearly helped to lay the groundwork for this large scale humanitarian deployment.”33 Four lessons from this experience stand out:
Credible (bipartisan) advocates punch above weight: Senators Nancy Kassebaum (R) and Paul Simon (D) were both long-time members of the Senate Foreign Relations Subcommittee on Africa and experts in their own right. After Kassebaum returned from a visit to Somalia, Simon supported in full her findings and recommendations. The two senators, accompanied by several members in the House and Senate, did not represent a wide swath of the Washington political establishment. Yet their experience and bipartisan approach generated significant attention as they declared the George H.W. Bush administration policy inadequate. Their reputation for foreign policy expertise signaled to the media and broader public that a change in policy was possible and desirable. This weight had real limitations, however; once the United States intervened militarily in Somalia, the operation lacked widespread congressional support.
Hearings can incubate ideas: More than half a dozen hearings in the Select Committee on Hunger, and in the House and Senate Subcommittees on Africa, took place over the course of 1992.34 Though not always headline makers, the hearings boosted those arguing for a change in policy. They provided a platform for drawing out and highlighting sympathetic officials in the Bush administration; Somalia coordinator Andrew Natsios, for example, openly provided his interlocutors with questions to drive policy debate.35 The hearings occasionally produced, in Kassebaum’s case, media coverage significant to capture establishment attention. And they provided a forum to elevate the information advantages of those with an interventionist bent; experts rejected, for instance, the oft-touted explanation that conflict in Somalia was driven by “ancient ethnic hatreds.”
Information confers policy advantage: Early in the conflict, Bush administration officials who preferred to stay out of the crisis held informational advantages over their more humanitarian-minded colleagues. The U.S. embassy departed Mogadishu in early 1991, as did many traditional nongovernmental organizations and actors that had detailed, on-the-ground perspectives. As a result, those bent on restraint were more easily able to frame the conflict as lacking in American national interest and rooted in intractable hatreds that no U.S. intervention could solve.36 As foreign aid increased and the international presence grew throughout 1992, so too did on-the-ground reporting. Along with it, multiple CODELs shaping media coverage, helping to shift sentiment toward a need for American intervention.
CODELs can bolster a policy case: Multiple congressional delegations to Somalia and refugee camps on the Kenyan border allowed lawmakers to assess the situation firsthand, drew press and other political interest to the conflict, and lent credibility to the views offered by members of Congress themselves. In addition to those led by Senator Kassebaum, Representative John Lewis led a large delegation in fall 1992 that showcased the influence of the Congressional Black Caucus (CBC).37 CBC support for the intervention was unusual for the generally more antiwar group, but the opportunity to set precedent for intervention on behalf of an African crisis, along with the immense humanitarian crisis, made a difference.38
But these advocacy successes were limited by failures by congressional activists to force the Bush and later Clinton administrations to set clear objectives and limits for the intervention, which broadened considerably beyond the original famine mitigation objective. This stands as a lesson for members to consider not only the initiation of intervention but also its scope, parameters, and metrics in their advocacy.
When Asking Is Not Enough
Congress’s power of the purse can and has been used to generate specific oversight processes in funding for new interventions. Two examples of such approaches generated a clearer understanding of the scope and objectives of an administration. Congress required detailed planning for the Syria Train and Equip Program before funding was obligated, continued to require committee approval of reprogramming requests, and mandated criteria for notification and progress reporting to strengthen metrics of the program. In practice, initial funding for this controversial program was held and released on a limited basis until questions of partner vetting and implementation had been satisfied.39 In a comparable example, when President Obama sought increased funding for overseas Ebola response assistance in 2014, committees authorized overall reprogramming requests but with limitations that required prior action before the funds could be used.40 In practice, this meant interagency experts briefed Hill counterparts regularly as funding was released in tranches. Though a blunt instrument, such tactics can help ensure that members and congressional staff are kept up to speed and can actively shape the implementation of interventions.
More broadly, Hill staff flagged the relevance of regular authorization bills in their informal oversight activities. Informal oversight tools have more weight when formal tools are also available. The Senate and House Armed Services Committees maintain stronger informal oversight, for instance, than their Foreign Relations Committee counterparts, largely because the annual National Defense Authorization Act (NDAA) provides a vehicle for mandating what the committees otherwise seek through informal means. While other committees—Senate Foreign Relations and House Foreign Affairs in particular—sometimes succeed in attaching a limited set of provisions to the NDAA or other must pass legislation, their lack of an annual authorizing bill limits their influence over agencies they oversee. Similarly, the Intelligence Authorization bills do proceed regularly, but are not generally used as tools for policy influence as is the NDAA. These are gaps in the congressional toolkit.
Tricks of the Trade
Longtime practitioners of the legislative arts know that the toolkit described here provides only a starting point for influencing use-of-force decisions. They also understand that the success of any effort turns not just on which tools are used, but also on how they are employed.
Building congressional coalitions can prove particularly effective. The executive branch pays attention to groups of members that are hard to ignore. A number of factors play into considerations here, including party affiliation, committee assignments, seniority, media profile, and executive branch relationships. The press and public will pay attention to counterintuitive coalitions—a union of liberal Democrats and conservative Republicans on a particular issue, for example, or a group of members attempting to defy a president from their party. Rarely is any member best off working in isolation.
The executive branch pays attention to groups of members that are hard to ignore.
The tools described here do not, of course, comprise the full panoply of options available to members. More ruthless courses of action exist, including placing holds on executive branch nominees (either because of objections to the nominee or as a hostage-taking exercise, aimed at forcing some policy movement); holding up a process that is important to the White House or an executive agency; leaking unclassified but inside information to the press or advocacy groups; linking consent on some unrelated measure to requested information or a particular policy outcome; and conducting clandestine strategy conversations with sympathetic administration officials (including receiving insider information via unofficial channels).
These and other measures will often come into play as a member seeks to climb the escalatory ladder. A legislator wishing to influence policy might start “small” with, for example, routine and innocuous requests for information and suggestions for a change in course. If and when the executive branch disregards reasonable requests, the member might use such defiance to galvanize a wider coalition that is prepared to be more forceful. Indeed, one of the most effective mechanisms for spurring a more assertive and unified legislative branch is spotlighting the perception that the executive branch is being disrespectful to it. Such a group could then employ an array of higher-stakes tools in order to prompt a policy change.
Tying It All Together
Members of Congress and staffers should not consider the approaches described here as a list of options from which to select one or two. Influencing use-of-force decisions, current military operations, and war termination requires a combination of many informal tools, tied together in a conscious campaign and waged over a significant period of time. The power that Congress wields in this space is significant, but its informality demands concerted effort to alter the public narrative, shift opinion, insert ideas, and build the context that makes the ideas politically palatable.
Today’s complex security environment—cutting across committee jurisdictions and placing military intervention in a context far different from that of 2002–2003—demands a much more pervasive, continuous, and collegial practice of oversight than has previously been the case. Success requires patience, relationships, willingness to invest heavily in expertise, and time, as shown in both the press for intervention in Somalia and Senator McCain’s four-year-long surge advocacy.
On Capitol Hill, much of the current focus revolves around ending the “forever wars” in order to devote attention and resources to other worthy subjects, from great power competition to needs at home. Yet history suggests strongly that the United States will remain in the military intervention business in some form for the foreseeable future. With that reality comes the imperative to differentiate between wise and unwise contingencies, test prevailing assumptions, oversee ongoing operations, and constantly improve the ability of U.S. forces to attain national objectives. In all of this, Congress has a key, even vital, role to play—and by better deploying its informal toolkit, it will better wage the policy battles that overlay the fights.
About the Authors
Richard Fontaine is the Chief Executive Officer at the Center for a New American Security (CNAS). He served as President of CNAS from 2012 to 2019 and as Senior Advisor and Senior Fellow from 2009 to 2012. Prior to CNAS, he was Foreign Policy Advisor to Senator John McCain for more than five years. Fontaine also has worked at the State Department, on the National Security Council, and on the staff of the Senate Foreign Relations Committee.
Loren DeJonge Schulman is an Adjunct Senior Fellow and the former Deputy Director of Studies and Leon E. Panetta Senior Fellow at CNAS. Before joining CNAS, she served in senior staff positions in the White House National Security Council and Department of Defense.
The authors would like to thank Maura McCarthy for her management of the publications process, and Vance Serchuk for his critical feedback. We would also like to thank the current and former Capitol Hill and Department of Defense staff who generously offered their experiences and insights for this project. Katie Galgano edited and helped shepherd this report through the process, and Marta San Jose Marín provided essential research assistance. The authors also thank The William and Flora Hewlett Foundation for its generous support of this project.
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- Waxman, “War Powers Oversight, Not Reform.” ↩
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- Lindsay, “Congress and Foreign Policy: Why the Hill Matters,” 607–28. ↩
- Adam Clymer, “Confrontation in the Gulf; Votes Backing Use of Force Are Predicted in Congress,” The New York Times, January 7, 1991, https://www.nytimes.com/1991/01/07/world/confrontation-in-the-gulf-votes-backing-use-of-force-are-predicted-in-congress.html. ↩
- One of the authors served as McCain’s Senate staffer during this period and afterward. ↩
- Loren DeJonge Schulman and Alice Friend, “The Pentagon’s Transparency Problem,” Foreign Affairs, May 2, 2018, https://www.foreignaffairs.com/articles/united-states/2018-05-02/pentagons-transparency-problem. ↩
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- Kate Brannen and Ryan Goodman, “Why We Filed a FOIA Request On How Many US Troops Are In Afghanistan, Iraq, and Syria,” Just Security, April 22, 2020, https://www.justsecurity.org/69808/why-we-filed-a-foia-request-on-how-many-us-troops-are-in-afghanistan-iraq-and-syria/. ↩
- Scott Anderson and Erica Newland, “Why the Trump Administration May End Up In Court Over War Powers Reporting,” Lawfare, February 28, 2020, https://www.lawfareblog.com/why-trump-administration-may-end-court-over-war-powers-reporting. ↩
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- William G. Howell and Jon C. Pevehouse, “When Congress Stops Wars,” Foreign Affairs, September–October 2007, https://www.foreignaffairs.com/articles/iraq/2007-09-01/when-congress-stops-wars. ↩
- Levin and Bean, “Defining Congressional Oversight and Measuring Its Effectiveness.” ↩
- Lindsay, “Congress and Foreign Policy: Why the Hill Matters,” 607–28. ↩
- Howell and Pevehouse, “When Congress Stops Wars." ↩
- Douglas L. Kriner, “Congress, Public Opinion, and an Informal Constraint on the Commander-in-Chief,” The British Journal of Politics and International Politics, 20 no. 1 (January 22, 2018), 52–68. ↩
- Ralph G. Carter and James M. Scott, “Taking the Lead: Congressional Foreign Policy Entrepreneurs in U.S. Foreign Policy,” Politics & Policy, 32 no. 1 (March 2004). ↩
- Howell and Pevehouse, “When Congress Stops Wars.” ↩
- Douglas L. Kriner, “Congress and the Media,” in While Dangers Gather: Congressional Checks on Presidential War Powers, eds. William G. Howell and Jon C. Pevehouse (Princeton: Princeton University Press, 2007), 155–91. ↩
- Congressional Research Service, “Congress’s Authority to Influence and Control Executive Branch Agencies,” CRS Report No. RA5442 (December 19, 2018), https://fas.org/sgp/crs/misc/R45442.pdf. ↩
- Frances Lee, et al, “Report of the Task Force on Congressional Reform,” American Political Science Association, October 29, 2019, https://www.legbranch.org/app/uploads/2019/11/APSA-Congressional-Reform-Task-Force-Report-11-2019-1.pdf; and Kathy Goldschmidt, “State of the Congress: Staff Perspectives on Institutional Capacity in the House and Senate,” Congressional Management Foundation, 2017, http://www.congressfoundation.org/storage/documents/CMF_Pubs/cmf-state-of-the-congress.pdf. ↩
- Mandy Smithberger, Director of the Center for Defense Information, “POGO Testimony: Need for Expanded Clearances for Congressional Staffers,” testimony to the House Appropriations Committee, U.S. House of Representatives, April 17, 2018, https://www.pogo.org/testimony/2018/04/pogo-testimony-need-for-expanded-clearances-for-congressional-staffers/. ↩
- In a forthcoming publication, this model is described as “community policing,” in which overseers rely on “walking the beat”—conducting routine meetings, briefings, and reports—and the executive branch “provides as much information as it can, based on the promise their autonomy will be respected.” Philippe Lagassé and Stephen Saideman, “When Civil-Military Relations is Civil: Trust and Parliamentary Oversight of Military Affairs in Belgium and New Zealand,” European Journal of International Security, forthcoming. ↩
- Ted Dagne and Harry Johnston, “Congress and the Somalia Crisis,” in Learning from Somalia: The Lessons Of Armed Humanitarian Intervention, eds. Walter Clarke and Jeffrey Herbst (New York: Taylor & Francis, 1997).
- Dagne and Johnston, “Congress and the Somalia Crisis.” ↩
- Livingston and Eachus, “Humanitarian Crisis and U.S. Foreign Policy: Somalia and the CNN Effect Reconsidered,” 413-429. ↩
- Western, “Sources of Humanitarian Intervention: Beliefs, Information, and Advocacy in the U.S. Decisions on Somalia and Bosnia,” 112-142. ↩
- Dagne and Johnston, “Congress and the Somalia Crisis.” ↩
- Glenn J. Antizzo, U.S. Military Intervention in the Post-Cold War Era: How to Win America’s Wars in the Twenty-first Century (Baton Rouge: Louisiana State University Press, 2010). ↩
- Christopher Blanchard and Amy Belasco, “Train and Equip Program for Syria,” Congressional Research Service, June 9, 2015, https://fas.org/sgp/crs/natsec/R43727.pdf. ↩
- Susan B. Epstein et al, “FY 2015 Funding to Counter Ebola and the Islamic State,” Congressional Research Service, March 18, 2015, https://www.everycrsreport.com/reports/R43807.html#_Toc414617202. ↩
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