Sen. Rand Paul delays defense bill over mild Afghanistan provision

The senator got into a rhetorical tussle with Rep. Liz Cheney over the Afghanistan language

Sen. Rand Paul, R-Ky., said he is concerned the NDAA conference report would “hamstring” the president.  (Tom Williams/CQ Roll Call/Pool)
Sen. Rand Paul, R-Ky., said he is concerned the NDAA conference report would “hamstring” the president. (Tom Williams/CQ Roll Call/Pool)
Posted December 10, 2020 at 6:59pm

Sen. Rand Paul is delaying a Senate vote to send the president the annual defense policy legislation over the Kentucky Republican's concerns that it would restrict U.S. troop withdrawals from Afghanistan. But the measure is unlikely to result in anything of the sort.

Paul, a longtime critic of the wars in Iraq and Afghanistan, told reporters Thursday he is concerned the NDAA conference report would “hamstring” the president as he tries to bring home 2,000 of the roughly 4,500 U.S. troops from Afghanistan by Jan. 15.

Paul assailed lawmakers who had previously said Congress should not limit a president’s ability to wage war but who are now, he said, happy to block this president from ending a conflict.

[House adopts defense conference report as veto threat looms]

“Now they want to limit the power if it could actually reduce troops in the theater of war," Paul said.

In a floor speech Thursday, Paul singled out Rep. Liz Cheney, R-Wyo., an author of the Afghanistan provision, although members of both parties supported it and similar language was included in both the House and Senate versions of the bill.

According to Paul, Cheney "said we shouldn't limit the president's powers in times of war — and then she authors a limitation on the president removing troops from war! So which is it?"

Cheney fired back on Twitter, saying Paul is “currently holding up passage of the #NDAA, blaming America, and delaying hazardous duty pay to hundreds of thousands of our service members and their families. Inexcusable. Rand and I do have one thing in common, though. We’re both 5’2” tall.”

Ineffectual provision

Given the acrimony, one would think the provision on Afghanistan would actually tie the president’s hands. But that is not likely.

The relevant section of the bill merely says that, whatever number of U.S. troops are in Afghanistan when the NDAA becomes law, no more can be brought out of the country until the Defense secretary sends an unclassified report to Congress (with a classified annex allowed).

The report would need to spell out the risks of a withdrawal, the plan for doing it, an update on U.S. hostages in Afghanistan and an assessment of any bounties being paid by “state actors,” principally meaning Russia, to launch attacks there.

If the report is provided, the withdrawal could proceed.

Writing such a document would not be a tall order. If the administration — Trump's or Biden's — supported the drawdown, its top security officials would likely minimize any risks. But even if they didn't, the mere submission of the report would be sufficient to permit the withdrawal to proceed.

As if preparing such a report in a way that justifies a drawdown would not be easy enough, the president could waive the entire limitation, the bill says. All he would have to do is certify that slowing the drawdown is not in the “national security interests of the United States.”

Indeed, nothing in the NDAA conference report would oppose a withdrawal of 2,000 U.S. troops from Afghanistan in the next month.

The closest the report comes is expressing members’ wariness about how it is done.

The conference report merely says that “any decision to reduce the Armed Forces of the United States in Afghanistan should be done in an orderly manner and in coordination with United States allies and partners and the Government of Afghanistan.”

White House protests

The White House Office of Management and Budget, in a July statement of administration policy, said it “strongly objects” to the House’s Afghanistan provision. It said the provision would “contravene the President’s constitutional authority" as commander in chief.

"This provision would restrict the President from discharging his Constitutional authority to reduce forces levels in Afghanistan if he deems it necessary," the statement said. "It also would subordinate the President’s authority to the discretion of the officials whose concurrence would be required for the certification.”

The White House also objected to a requirement that was then in the House bill but later jettisoned by conferees — that three military commanders had to concur with the certification.

OMB leaders reiterated their opposition to the provision in a December statement of administration policy on the conference report.

“Numerous provisions of this conference report directly contradict the Administration’s foreign policy, particularly the President’s efforts to bring our troops home,” the White House officials said. “The President — and the American people — oppose endless wars.”

The December statement criticized not just the Afghanistan provision but also similar language in the conference report that would hinge troop withdrawals from Germany and South Korea on Congress receiving certain reports.

Of note, the White House did not say the language would actually force the president to do anything and merely alleged that the bill “purports to restrict” his prerogatives.

Temporary holdup

Paul would like to see the NDAA changed, but a conference report cannot be amended.

Another vote delayed by his protest over the Afghanistan provision is the Senate's otherwise uncontroversial consideration of a one-week stopgap federal spending extension.

As of Thursday, Paul’s protest appeared to have kept the Senate from voting on the NDAA that day.

On Friday, the Senate is scheduled to take a cloture vote to cut off debate on the measure. That vote is set for one hour after the chamber convenes — so probably late morning.

If cloture is invoked, the Senate could proceed immediately to a vote on the conference report. Paul could also force the Senate to use the full 30 hours of debate that by rule are allowed after a cloture vote — but that are normally waived.

The timing of the Senate vote on the massive policy bill is particularly important because Trump has threatened to veto the measure. Trump has 10 days, excluding Sundays, to sign or veto the bill. House leaders have said they would return before the end of this Congress, Jan. 2, to hold a veto override. Senate leaders, however, have not committed to returning to the Capitol after adjourning for the holidays.