Analysis: Congress unlikely to tie Trump’s hands on Afghan plan

The strongest legislative language on Afghanistan may not become law, and it’s probably not potent enough to stay Trump’s decision on troops

Senate Armed Services ranking member Jack Reed, D-R.I., left, and Chairman Jim Inhofe, R-Okla., talk before the start of a September hearing.  (Caroline Brehman/CQ Roll Call file photo)
Senate Armed Services ranking member Jack Reed, D-R.I., left, and Chairman Jim Inhofe, R-Okla., talk before the start of a September hearing. (Caroline Brehman/CQ Roll Call file photo)
Posted November 18, 2020 at 5:02pm

House and Senate negotiators must decide in the coming days whether to send President Donald Trump a final defense authorization bill that would aim to bar him from slashing U.S. troop levels in Afghanistan.

But the strongest NDAA language yet written along these lines may not survive conference, and it’s probably not potent enough in any event to stay Trump’s hand — as if he would obey it anyway.

As a result, Congress will have once again deferred to presidential authority on a matter of national security.

Peter Feaver, a professor of political science at Duke University who served on President George W. Bush’s National Security Council, said the Constitution gives presidents extraordinary leeway during wartime operations — and Congress rarely tests those limits.

“Congress’ best lever for shaping operations is to use the power of the purse, but that is politically very hard for Congress to do while operations are underway,” Feaver said by email Wednesday. “As a consequence, it is rare for Congress to succeed in attempts to tie the President’s hands when they are not using appropriations powers — and it is rare for Congress to wield that stick in wartime."

Half the troops homeward

The latest tug of war over war power came to a head this week when Trump ordered about half the U.S. troops remaining in Afghanistan to return home before Jan. 15, which — he did not say this part — is five days before he would leave office.

U.S. diplomats signed an agreement with the Taliban in February in which the Americans agreed to bring their troop numbers in the country — then at about 12,000 — slowly down to zero by May 2021.

That was contingent, according to the pact, on the Taliban fulfilling certain conditions, including a halt to threats against the United States and its allies. Many observers — including, just this week, senior lawmakers and the Pentagon’s inspector general — say those conditions have not clearly been met.

Nonetheless, acting Defense Secretary Christopher Miller announced Tuesday that the number of U.S. troops in Afghanistan, now just under 5,000, would drop to 2,500 by Jan. 15. Miller also said U.S. troop levels in Iraq would drop from 3,000 to 2,500.

House purports to push back

The president conducts U.S. foreign policy, but Congress has the power of the purse. And the House-passed NDAA for fiscal 2021 would attempt to use it.

The bill would require the Defense secretary — “in concurrence with” other senior civilians and a trio of four-star generals — to certify to Congress that a withdrawal from Afghanistan below 4,000 troops would be in America’s interests.

That means the withdrawal could not hurt counterterrorism efforts or risk U.S. military personnel and would be done in consultation with allies.

If the certification could not be made, then Trump’s latest troop drawdown could not be funded, the House bill says.

The Senate’s legislation, by contrast, would only require the administration to inform Congress on threats in Afghanistan and on its plan for transitioning security duties from U.S. and coalition forces to Afghan ones.

Both the House and Senate bills contain language about the importance of the mission in Afghanistan and the need to avoid precipitous withdrawals not tied to conditions in Afghanistan, but that verbiage is of the nonbinding “sense of” Congress variety.

Both measures were passed in July, when there were more than 8,000 U.S. troops in Afghanistan.

White House protests

The White House, in a July statement of administration policy on the House bill, said officials “strongly object” to the House measure.

The reason, according to the statement: The provision would infringe on the president’s ability to conduct foreign policy and, further, would require that his policy be driven by his subordinates’ views, including those of military officers who obey civilian command.

“This provision would restrict the President from discharging his Constitutional authority to reduce forces levels in Afghanistan if he deems it necessary,” the White House officials said.

To be sure, House and Senate negotiators writing the final NDAA could strengthen the House provision on Afghanistan. But the leaders of the Armed Services panels who run the conference are divided in their views on the Afghanistan drawdown.

The two ranking members — Sen. Jack Reed, D-R.I., and Rep. Mac Thornberry, R-Texas — criticized the move this week.

The two chairmen — Sen. James M. Inhofe, R-Okla., and Rep. Adam Smith, D-Wash. — support the president’s decision to reduce the U.S. troop presence in Afghanistan.

But the House provision, as now written, probably would not restrict Trump.

First, it may not become law in time to matter. The White House statement threatened to veto the bill, citing multiple provisions of concern. Trump himself has tweeted that he would veto the conference report if it contained a requirement, now found in both the House and Senate bills, to rename military bases such as Fort Bragg that honor Confederates.

Thornberry suggested to reporters on Tuesday that some in Congress would prefer to delay clearing the NDAA until 2021. Their reason, he said: to avoid a politically charged fight over the bill while control of the Senate hangs in the balance amid two runoff elections in Georgia in January.

If the bill is punted into 2021, the nearly 2,500 troops coming home from Afghanistan earlier than planned may already be stateside before the NDAA becomes law.

Loopholes galore

Even if the bill is enacted this year and contains the House provision intact, it is not clear how much effect it would have.

The House provision says the certification on the troop withdrawal would require concurrence from the secretary of State, the director of national intelligence, the chairman of the Joint Chiefs of Staff, the commanders of Central Command and of U.S. forces in Afghanistan, plus the permanent U.S. representative to NATO.

The civilians on that list are Trump loyalists, and the military officers are subordinate to civilian authority. For any of those people to rebuff Trump on this issue would require considerable courage.

Moreover, while the House measure would require that at least part of the report with the certification be unclassified, it will be up to the administration to decide how much — potentially enabling officials to hide any dissent.

As if that is not enough to make a rebellion against Trump’s expedited drawdown unlikely, the House provision also grants the Defense secretary the authority to completely waive the limitation, although he would have to justify the decision to Congress.

For the next two months, that waiver authority would be in the hands of Miller, whom Trump named to the post precisely because the previous secretary, Mark T. Esper, was insufficiently loyal on the Afghanistan issue, according to multiple reports.

Perhaps most importantly, the White House has already called the provision unconstitutional, so on that basis alone it would seem unlikely Trump would heed it.

Even if none of that were true, Trump could flout the requirement simply because he wanted to, given his tendency to disregard Congress on other issues, such as his redirecting of Pentagon funds to a purpose other than the one that Congress enacted: building barriers on the U.S.-Mexico border.