More than any other time since its passage in 2001, a serious movement is afoot to repeal the Authorization for Use of Military Force, which passed by an overwhelming margin in the wake of the 9/11 terrorist attacks.
The law, often abbreviated as AUMF, was meant to allow President George W. Bush to invade Afghanistan, but in the years since it has been invoked—by Presidents Bush, Barack Obama, and Donald Trump—to justify military operations against terrorist groups in at a dozen other countries. And the legal case for this expansion has always been dubious.
As originally passed, the bill authorized the president
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attack that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
In short, it was a narrow piece of legislation, meant to apply only to entities involved in—or harboring those involved in—the 9/11 attacks. This would encompass only al-Qaida and the Taliban, which, as the leader of Afghanistan at the time, was supplying al-Qaida with a sanctuary.
During the subsequent war, U.S. troops captured militant fighters and sent many of them to the new detention center at Guantánamo Bay. Some of the prisoners belonged to al-Qaida or the Taliban; some belonged to other organizations. This posed a dilemma: Under what authority could those other fighters be detained?
A March 2009 brief filed by Obama’s Justice Department—and affirmed in a U.S. district court—argued that the AUMF permitted the detention not only of Taliban and al-Qaida forces but also of “associated forces that are engaged in hostilities against the United States or its coalition partners.” However, the brief noted:
This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts.
In subsequent political debates over the AUMF, the point about “associated forces” was widely accepted, but this caveat—that the expansion applies only to current detainees in Guantánamo Bay—was ignored. As a result, the impression grew that the AUMF allows combat operations against forces “associated” with al-Qaida. In fact, it does not. There is not the slightest suggestion of any such mandate in the 2001 legislation.
Nonetheless, according to a 2016 study by the Congressional Research Service, Bush invoked the AUMF on 18 occasions and Obama invoked it on 19, to justify action against terrorists—though many of them had nothing to do with 9/11 and some did not even exist at the time. The Trump administration has also cited the AUMF to argue that U.S. troops can stay in Syria without any new authorization from Congress.
This argument originated with Obama. In 2014, a “senior administration official” laid out the case in an email to the New York Times. The official argued that the AUMF justified military operations against ISIS in Syria because the Islamic State—as the group was also known—had a “longstanding relationship with al-Qaida” and because its leaders regarded ISIS as “the true inheritor of Osama bin Laden’s legacy.” Therefore, the president could rely on the AUMF as authority for the use of force against ISIS, “notwithstanding the recent public split” between ISIS and al-Qaida’s senior leadership.
As the Bipartisan Policy Center observed in an analysis of the law’s history, “Critics of the expansive use of AUMF argue that the last sentence”—noting the split between ISIS and al-Qaida—“is most telling.” The analysis added: “Though ISIS came into being as Al-Qaeda in Iraq (AQI), it was disavowed by al-Qaeda leader Ayman al-Zawahiri in February 2014. … Furthermore, ISIS did not come into being until 2004—three years after the AUMF’s passage.”
In other words, the notion that the president has presumptive authority to keep troops in Syria or any other country—other than Afghanistan—has a flimsy foundation.
Rep. Barbara Lee, a Democrat from California, has waged a lonely war against the AUMF since the law was passed. (In fact, she was the only member of Congress to vote against it in 2001.) Now, though, she’s attracting some allies, even among Senate Republicans, out of the growing concern that Trump may use the AUMF as an excuse to go to war against Iran without seeking congressional approval.
On Tuesday, the House Appropriations Committee approved a bipartisan amendment that would repeal the AUMF and give Congress eight months to draft new legislation addressing the ongoing wars. In 2017, a similar amendment passed the committee in a voice vote, but Rep. Paul Ryan, then the Republican speaker of the House, stripped the amendment from the broader spending bill. It is unlikely that Rep. Nancy Pelosi, the current Democratic speaker, will do the same. The House might even pass the bill with the amendment intact. It will, of course, face harsher resistance in the Senate, where Majority Leader Mitch McConnell has been simply blocking bills—or Supreme Court nominees—that he doesn’t like from coming to the floor for a vote.
Whatever one’s views on Syria, Iran, and the global war on terror, the AUMF is clearly outdated: It neither authorizes nor says much of anything, one way or the other, on the majority of battles that U.S. troops are fighting today, 18 years after the 9/11 attacks.
However, the move to repeal or revise the law doesn’t necessarily mean that Congress will resist Trump’s—or any other president’s—march toward war. According to the Congressional Research Service study, on the 19 occasions when Obama mentioned the AUMF in reports to Congress on the use of force, he often emphasized his executive authority under Article II of the Constitution, noting almost in passing that his decision was also “consistent with” the AUMF. He was reporting the military operations to Congress, as required by the War Powers Act—which gives Congress 60 days to vote against a military operation, if it so desires. There was never a vote—nor did anybody expect one.
The War Powers Act was passed in 1973, when revolt was in the air: Richard Nixon’s presidency was collapsing in the face of the Watergate hearings; the war in Vietnam was stirring massive protests; Arthur Schlesinger’s book, The Imperial Presidency, was winning critical acclaim and climbing the best-sellers lists, lending scholarly heft to the popular outrage. Nixon vetoed the bill, but the House and Senate each mustered the two-thirds majority necessary to override his veto. Over the next few years, after Democrats captured both chambers of Congress, including a veto-proof supermajority in the House, they stopped the flow of money for the war in Southeast Asia, barred the use of funds to fight communist rebels in Angola, and passed the Foreign Intelligence Surveillance Act, which placed restraints on the CIA and the National Security Agency.
However, in the decades since that brief burst of assertiveness, Congress has relapsed into passivity, letting “the imperial presidency” resume—and, in recent years, accelerate—its course. It sits back, even when a president asks it to lean forward
For instance, in 2013, after Syrian President Bashar al-Assad crossed the U.S. “red line” by attacking his own people with chemical weapons, Obama prepared to launch airstrikes against Assad’s regime and military forces—but then decided to ask Congress for the authorization to do so. (Obama’s reasoning was that the British and French decided not to go along with an attack; the U.N. Security Council wouldn’t approve it, given the certainty of a Russian veto; so, Obama decided he shouldn’t make such a momentous decision—which might escalate the conflict—unilaterally.) Then a funny thing happened: The Republicans in Congress—who had been urging Obama to take action and who had demanded that they have a say in whatever action he took—refused to bring the issue to a vote. They didn’t authorize action, so Obama didn’t take action—and then the Republicans condemned Obama for his passivity.
The truth is, whatever the fate of AUMF, most members of Congress don’t want the responsibility of going to war—or of stopping a war from happening. They would rather let the president, even a president they don’t much like, take the heat.