Seven days after the 9/11 terrorist attacks, Congress passed a joint resolution that gave then President George W. Bush the go-ahead to use military force against the attackers. Since then, that resolution has been stretched to give the president sweeping powers in an open-ended “war on terror” that has expanded from al-Qaeda to groups that didn’t even exist in 2001.
Called the “Authorization for Use of Military Force,” or AUMF, it specifically gives the president the power “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” to prevent more terrorism by these groups.
In October 2002, Congress passed a second AUMF, this time focusing on Iraq. It gave the president the authority to use U.S. military force in response to Iraq’s supposed stockpiling of weapons of mass destruction. The 2002 AUMF also cites Iraq as harboring terrorists, including al–Qaeda.
These AUMFs continue to be in force, but the first AUMF is inching toward the congressional spotlight because it has been used to justify presidential-ordered counterterrorist military actions around the world far beyond its original scope. Calls to re-examine and update the law have grown louder in the wake of President Trump’s August announcement that he would boost troop levels in Afghanistan — America’s longest war — without specifying a timeframe or exact numbers.
The further the 9/11 attacks recede into history, the more slippery the slope becomes for presidents relying on the AUMF to combat an ever-evolving array of terrorist threats.
Sixteen years ago, Congresswoman Barbara Lee (D-Calif.) was the sole person who voted against the AUMF. “I voted against the 2001 AUMF because I feared it would set the stage for perpetual war,” she wrote to The Diplomat in an email. “Over the last sixteen years, this authorization has been used in fourteen countries, at least thirty-six times, to justify military action in Iraq, Afghanistan and Syria, drone strikes in Yemen, bombing in Libya, indefinite detentions in Guantanamo Bay and warrantless wiretapping here at home.
“The 2001 AUMF has become a blank check for endless war — and it’s past time for it to be repealed,” she wrote.
Lee continues to push the issue, hoping to repeal the AUMF so that Congress can debate a new version. For years, lawmakers largely avoided the unpopular issue, leading to criticism that the body was shirking its responsibilities and outsourcing hard decisions on the fight against terrorism to the White House. But in the last few years, both Democratic and Republican members of the House and the Senate have slowly migrated to Lee’s side. The longstanding debate over repealing the AUMF got a recent shot in the arm, but it’s unclear whether enough momentum will build to get the job done.
In June, Lee finally got through an amendment to sunset, or put an end date to, the 2001 AUMF in the House Appropriations Committee. Rep. Tom Cole (R-Okla.), the deputy majority whip, surprised the committee by supporting Lee’s amendment, as reported by Foreign Policy’s Robbie Gramer.
“This is something where Congress has collectively avoided taking responsibility for years,” Cole said. “The Constitution is awfully clear … about where war-making authority resides. It resides in this body. And we’ve had leadership honestly on both sides that put off this debate again and again and again.”
Even Lee seemed taken aback by the move, tweeting: “Whoa.” But then House Speaker Paul Ryan (R-Wis.) removed the amendment from the defense appropriations bill.
“Despite support for this amendment on both sides of the aisle, Republican House leadership stripped my amendment from the bill without a vote,” she wrote to The Diplomat. “This outrageous, underhanded and undemocratic maneuver underscores the unwillingness of House GOP leadership to fulfill their constitutional duty on matters of war and peace. The American people must demand more of our elected officials.”
In July, the House Foreign Affairs Committee took on the subject in a hearing, where Chairman Ed Royce (R-Calif.) said in his opening statement that he does not support repealing AUMF until there is agreement on how to move forward in governing the use of military force to combat terrorism.
On the Senate side, Tim Kaine (D-Va.) has partnered with Jeff Flake (R-Ariz.) to introduce a bipartisan AUMF against the Islamic State, al-Qaeda and the Taliban. According to a Kaine spokesperson in an email to The Diplomat, this “bipartisan AUMF explicitly authorizes military action against the three terrorist groups, gives Congress an oversight role it currently lacks over who can be considered to be ‘associated’ with the terrorist groups and in which countries military action can take place, and provides a sunset of the authorization in five years with an expedited process to consider any extension. Lastly, it repeals the 2001 and 2002 AUMFs.”
Balance of Powers
At the heart of the movement to repeal the AUMFs is the growing realization by members of Congress of the legislative branch’s constitutional role to constrain the executive’s military powers. This goes back to the founding fathers building checks and balances into the three branches of government, which is now playing out as lawmakers take a closer look at the sweeping counterterrorism authority given to presidents in the wake of 9/11.
The president, as the Constitution states, is the commander in chief of the military. But the Constitution also gives Congress the power to declare war. The war on terror has spread to parts of the world and to terrorist groups that are outside the scope of the 2001 AUMF, which applies to al-Qaeda and the Taliban.
The emergence of the Islamic State during the Obama administration brought up the question of whether military force against the group (also known as ISIS) would be covered under the 2001 AUMF or if new legislation was needed. Obama theorized that he did not need a new AUMF because he had the authority he needed in the 2001 law.
In 2014, the Senate Foreign Relations Committee debated a new AUMF that would not have put geographical limits on military counterterrorist operations but would have prohibited ground troops and had a sunset provision of three years, with possible extensions. The effort to create this new AUMF was ultimately unsuccessful.
“It was less about content and language and more about creating the environment and the effort and inertia to move this forward,” Adam Sharon, a former Democratic communications director for the Senate Foreign Relations Committee, told The Diplomat. “It never was there in a sufficient way. It didn’t become the kind of issue where everything stopped and it became the focus.”
Nevertheless, some members of Congress are still concerned about presidential overreach. The Sept. 11 attacks happened under Bush’s watch, so he was given swift authorization to go after al-Qaeda and the Taliban in Afghanistan. Under Obama, the terrorist threat shifted, and Obama rationalized that the Islamic State, even though it had a presence in Iraq, Syria, Libya and elsewhere, is an offshoot of al-Qaeda and, therefore, is covered by the 2001 AUMF. This rationale did not sit well with everyone.
“The years after 9/11, it was easier to say this is Taliban and al-Qaeda,” John B. Bellinger III, a presidential legal adviser during the Bush administration and a partner at Arnold & Porter Kaye Scholer, told The Diplomat. “The really big extension was the Obama administration’s legal conclusions that the 2001 AUMF applied to ISIS. That was reached in 2014. ISIS was not part of al-Qaeda, but Congress acquiesced.”
Under the Trump administration, some experts argue that the AUMF is being stretched even further. The U.S. military fired on a Syrian jet in June because it had attacked the U.S.-backed Syrian Democratic Forces, a rebel group ostensibly fighting the Islamic State. This retaliation, however, put the U.S. in direct conflict with the Syrian regime.
“It’s been a snowballing stretch of the 2001 AUMF to cover more persons, groups and even nations,” said Bellinger, who has been pushing for a revision of the law for more than five years and has testified about the issue before the Senate.
The State Department sent a letter to the Senate Foreign Relations Committee in August justifying its latest actions in Syria as covered under the 2001 AUMF. The letter also states that the administration does not seek to revise or create a new AUMF.
“That is both legally suspect and shortsighted,” said Bellinger. “It’s very hard to continue to argue the 2001 AUMF provides the legal authority for the use of force we have today.
“The president has very broad powers to use military force as commander in chief. But it’s better both legally, and in terms of representative democracy, for Congress to authorize the use of force, and then the president is on stronger legal and political ground,” he added.
Hashing Out a New AUMF
Congress is beginning to wrap its head around the possibility of a new AUMF, but there are several key issues to iron out. One is the degree of specificity for the groups to be targeted. Another is whether geographical limitations should be imposed. Yet another is whether ground troops should be allowed. Also, there is the question of whether there should be a sunset provision, and if so, for how long.
Reaching consensus on these thorny issues is not easy now that the terrorist threat has morphed and could continue to change as time goes on. Obama did not want to be constrained militarily or geographically when going after the Islamic State, and when he invoked the 2001 AUMF, he had wide latitude to act against the group.
The Kaine and Flake AUMF would target the Islamic State, al-Qaeda and the Taliban, impose geographical limits on military action and include a five-year sunset that could be extended.
Senator Rand Paul (R-Ky.) is among the members of Congress eager to have the legislative branch exert its oversight role on the use of military force. He wrote to The Diplomat in an email that he would like to repeal the 2001 and 2002 AUMFs and “would consider supporting an AUMF that provides strict geographical limits and a one-year sunset. The wars in Iraq, Yemen and elsewhere are separate and unique wars and should require separate authorizations. U.S. involvement in the wars in Yemen, Syria, Iraq, Sudan, Nigeria and elsewhere around the globe is not covered by any Congressional authorization and is therefore unconstitutional.” Paul does not believe the Islamic State is covered by the 2001 AUMF.
In his testimony for the House Foreign Affairs Committee, Brig. Gen. Richard C. Gross, now retired from the U.S. Army and a former legal counsel to the chairman of the Joint Chiefs of Staff, cautioned that a geographic limitation “may not afford the president and military commanders the flexibility necessary to pursue the enemy outside the named countries. Terrorist groups often seek safe haven in ungoverned and under-governed spaces, and publicly announcing geographic limits in an AUMF may encourage adversaries to seek out those countries where the AUMF does not authorize military force.”
Those seeking a new AUMF generally want to include a sunset provision. For instance, Kathleen Hicks, senior vice president and director of the International Security Program at the Center for Strategic and International Studies, told The Diplomat she believes a new AUMF should have a sunset clause that would force lawmakers to re-evaluate the law every three to five years. A new AUMF should also include “a process that allows the executive branch to add groups and geography” and should give “Congress the ability to reject those extensions and expansions,” she said.
Hicks, who has testified on the AUMF for the Senate Foreign Relations Committee, said combat troops will be the major sticking point in the debate. “Most complicating is the ground force potentiality — saying anything specific.”
Some think it’s unwise to handcuff the president as he goes after the metastasizing threat of terrorism around the world. Even Obama, who was not a war hawk, did not want his hands tied when going after the Islamic State. Others, however, think it’s best for Congress to keep tabs on how, when and where the president is using the military for counterterrorism purposes.
For some, that’s especially vital now that Trump is president. “Democrats on the House side, they don’t want to have this look like they’re allowing the president to use force,” said Hicks.
“The increase in congressional emphasis on foreign policy and ensuring it’s an active participant — there’s a clear correlation between that and Trump becoming president,” said Hicks. “Democrats, and some key Republicans, they’re not willing to trust Trump to use force.”
But both Democrats and Republicans have been avoiding this problematic issue for years, content to let the president sign off on risky operations and wary of looking soft on the war on terror. Likewise, the White House and military brass — reluctant to have their powers curtailed — haven’t been eager to revisit the issue either.
A busy congressional calendar stacked with more urgent legislative priorities also means the AUMF debate will likely be put on the backburner, yet again. Other issues such as health care, tax reform and must-pass budget and debt ceiling votes take precedence. But the AUMF remains on the congressional radar, especially among progressive Democrats and libertarian Republicans, and it could quickly be revived if Trump takes controversial counterterrorist actions abroad that spark outrage back home.
For now, however, while there is tepid bipartisan support for a new AUMF that addresses shifting terrorist threats, it may be a long time before lawmakers put any kind of end to an otherwise open-ended war.
About the Author
Aileen Torres-Bennett is a contributing writer for The Washington Diplomat.