Scott Anderson. A Primer on Sen. Merkley’s Proposal to Replace the AUMF (2018)
On Wednesday evening, Sen. Jeff Merkley (D.-Ore.) introduced new draft legislation to repeal and replace the 2001 authorization for use of military force currently used to authorize most U.S. counterterrorism operations. His proposal builds on a “statement of principles” he released last week following a Senate Foreign Relations Committee hearing on the other such proposal currently being debated, a replacement AUMF co-sponsored by Chairman Bob Corker (R.-Tenn.) and Sen. Tim Kaine (D.-Va.) along with a bipartisan coalition of other influential senators.
In his statement, Merkley expressed “fundamental concerns” with the approach taken by the proposed Corker-Kaine AUMF, which, he implied, would delegate too much of Congress’s constitutional authority to declare war to the president. Consistent with these concerns, his bill—entitled the “Constitutional Consideration for Use of Force Resolution”—would make Congress a more integral part of these decisions by requiring affirmative congressional authorization for any expansion in the scope of the authorization for the use of force that it provides. This contrasts with the Corker-Kaine AUMF proposal, which would allow the president to make such determinations so long as Congress is notified and has a chance to enact legislation reversing it through certain expedited procedures. And it would be a dramatic departure from the status quo under the 2001 AUMF, which currently allows the president to unilaterally expand counterterrorism operations to new armed groups and foreign countries without consulting Congress, based on (sometimes tenuous) interpretations of the 2001 AUMF’s text and intent.
Inspired by Bobby Chesney’s primer on the Corker-Kaine AUMF, this post takes a close look at the provisions of the Merkley proposal and how they operate.
What Would It Do?
By design, the Merkley bill would replace both the 2001 AUMF and the separate 2002 AUMF regarding U.S. military activities in Iraq, the latter of which is currently only used as redundant authority for certain activities targeting the Islamic State. Once enacted, the Merkley bill would repeal the 2002 AUMF immediately but leave the 2001 AUMF in place for six months. This would provide a window for transitioning ongoing activities to the new set of authorities, or winding down any current activities that will no longer be authorized under the proposal.
The plain language of the legislation directly authorizes an array of activities that is far narrower than that currently being pursued under the 2001 AUMF. Specifically, it authorizes the use of “all necessary and appropriate force” against al-Qaeda, ISIS, and the Taliban in both Afghanistan and Iraq for the purposes of protecting “the United States and its compelling interests”—defined as any U.S. territory, U.S. armed forces, or U.S. citizens—from attacks by the same groups. This is in contrast to the Corker-Kaine AUMF proposal, which is specifically designed to continue authorizing the current scope of U.S. counterterrorism operations.
The proposal sets limits on how any force it authorizes may be used. Any such use of force must comport with U.S. obligations under international law and cannot be used to target any foreign state. The Merkley bill incorporates the definition for “foreign state” from the Foreign Sovereign Immunities Act, which includes both political subdivisions of foreign states and their agencies and instrumentalities. This makes clear that the bill cannot be used to target Iran’s Islamic Revolutionary Guard Corps or other quasi-governmental entities, a concern that some have raised in relation to a similar provision in the Corker-Kaine AUMF.
Unlike the 2001 AUMF and the Corker-Kaine AUMF proposal, the Merkley bill does not allow the president to unilaterally expand the scope of authorized activities to new armed groups or foreign countries. Instead, the president may request such an expansion by sending one of three different types of written requests to Congress, who must enact any changes through legislation.
First, the president may ask Congress to expand the scope of authorization to include the use of force against a new organized armed group. To be eligible for such designation, that organized armed group must satisfy the following three prerequisites:
- It cannot be a foreign state, as defined by the Foreign Sovereign Immunities Act;
- It must be engaged in active hostilities against the United States as a party to an ongoing armed conflict involving the Taliban, al-Qaeda, or ISIS; and
- It must demonstrate a credible ability to conduct a substantial attack against compelling U.S. interests, defined as any U.S. territory, U.S. armed forces, or U.S. citizens.
As the Merkley bill is explicit that its direct authorization does not extend to “associated forces, successor forces, or forces otherwise related to” al-Qaeda, ISIS, and the Taliban this designation procedure is the only mechanism for extending the scope of authorization to armed groups beyond the “core” of these three organizations—including to many entities currently being targeted pursuant to the 2001 AUMF. And certain al-Qaeda, ISIS, or Taliban affiliates currently targeted under the 2001 AUMF may not meet the bill’s new requirement that designated groups have the capacity to attack U.S. territory or persons. Compare this with the Corker-Kaine AUMF, which only requires that such affiliates be engaged in hostilities with the United States or U.S. coalition partners to fall within its scope.
The president would also be allowed to submit a request asking Congress to extend the law’s geographic scope to foreign countries other than Afghanistan and Iraq. Such requests cannot, however, provide authorization for the use of “ground forces in a combat role[,]” which the legislation deals with separately. That said, this category of activity explicitly excludes “[s]mall detachments of special operations forces” and forces deployed pursuant to other authorities, meaning these activities—as well as activities that do not involve the deployment of ground forces, such as air strikes—could be authorized by such a request.
Finally, bill allows the president to ask Congress to authorize the use of ground forces in a combat role in a new foreign country to which the law has already been extended. This added level of authorization appears to be intended to prevent unintended mission creep from turning counterterrorism operations into enduring military presences. Additional authorization is not needed for Afghanistan or Iraq, however, as the proposal’s direct authorization for the use of force in these countries does not impose any limitations regarding the use of ground forces.
Once the president has made one of these requests, any member of Congress may introduce a joint resolution to implement the requested change. This joint resolution is in turn eligible for special “expedited consideration” procedures designed to ensure a swift and unobstructed congressional debate, as described in greater detail below. Each request, however, must be considered and debated separately. This requirement is no doubt intended to ensure careful congressional consideration, particularly where the expansion of hostilities to a new foreign country or use of ground troops in a combat role is involved. But in practice it may prove onerous. For example, if the president wishes to maintain the current scope of U.S. counterterrorism activities following the enactment of the proposal, he or she would have to make more than 20 individual requests, each of which would have to be debated separately by Congress.
What About Detention?
The perennially controversial subject of detention warrants special attention. Unlike the Corker-Kaine AUMF, the Merkley proposal never explicitly addresses detention issues. In authorizing the use of “all necessary and appropriate force[,]” however, it uses the same language as the 2001 AUMF. Thus it presumably authorizes the same scope of activities, which the Supreme Court found to include law of war detention in Hamdi v. Rumsfeld.
The detention facility at Guantanamo Bay raises additional issues. Under the legislation’s system for managing the geographic scope in which force is used, the executive branch would apparently have to ask Congress to expand the scope of authorization to Cuba if it wishes to continue operating the Guantanamo Bay facility. Obviously, this request has the potential to be highly controversial and there is a substantial chance that Congress would choose not to implement it—forcing detention operations at Guantanamo Bay to cease within six months of the bill’s enactment.
How Long Would It Last?
The proposal contains two separate sunset provisions: one for each organized armed group within its scope and one for the law itself. In this sense, it differs notably from both the 2001 AUMF and Corker-Kaine AUMF, neither of which includes any defined termination dates (though the latter would allow for the expedited consideration of legislation to modify or repeal it every four years).
In regard to organized armed groups, the proposal would require the president to certify to Congress every six months that each such armed group the legislation covers—including al-Qaeda, ISIS, and the Taliban—continues to satisfy the three requirements for designation described above. If the president cannot do so, then the authorization to use force against that group ends 60 days after the due date.
The law as a whole expires three years after its enactment. At least 90 days in advance of this date, however, the president must submit a report to Congress providing a recommendation as to whether the law should be extended, either with or without modification. Any member of Congress could then introduce a joint resolution seeking to extend or modify the law, which would be eligible for the special “expedited consideration” procedures described below.
Notably, it’s not clear that this latter joint resolution must implement the president’s recommendation in order to qualify for expedited consideration, as is the case with joint resolutions introduced in response to the three types of presidential requests discussed above. The law also does not define the period of time for which it may be extended nor the manner in which it may be modified, presumably leaving both to Congress to define. This gives Congress substantial leeway in amending the terms of the proposal once it expires, using its expedited consideration procedures.
Sixteen years later, the AUMF continues to be used as legal justification for counterterrorism operations all over. And that concerns a growing number of Republicans and Democrats on Capitol Hill. They believe that too much time has passed since 2001, and that a new AUMF is needed to confront terrorist threats in 2017.
I have conflicting feelings about this one. For one, I’m convinced the president has significant latitude to conduct short term or short notice military operations absent congressional authority. Article 2 Section 2 of the Constitution empowers the president as “the Commander-in-Chief.” It is the legal responsibility of the president to take expedient action to protect American lives and interests. The Supreme Court has consolidated this authority, recognizing that effective command is ill-suited to bureaucratic delay.
Were, however, Congress required to authorize every individual use of military force, enemies would gain time and space to strike. A president might also hesitate to take urgent action, fearing after-the-fact armchair generaling. Such a situation would enable al Qaeda and the Islamic State to exacerbate their serious threat to the United States.
I also worry that were Lee’s amendment to become law, a new AUMF might not exist. In that situation, the fight against ISIS in Syria or al Qaeda in the Arabian Peninsula would come under question. Trump should demand a new AUMF before signing a withdrawal of the 9/11 AUMF.
John Glaser Repeal, Don’t Replace, the AUMF (2018)
Today, John and I are going to make the case that the best way to avoid that danger is to wipe the slate clean: repeal, don’t replace, the 2001 AUMF. Recognize that the original authorization has run its course, and sunset it, leaving adequate time — six to nine months — to wrap up ongoing combat operations and for the president to make the case for any new authorization he thinks is needed. If he does, he can make that case to Congress, the way the Constitution envisions.
Our Constitution’s Framers thought that going to war should be difficult. James Madison held it as “an axiom that the executive is the department of power most distinguished by its propensity to war, [therefore] it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.” They did that by granting the bulk of the Constitution’s military powers to Congress, including control of the decision to go to war in the first place.
That didn’t leave the president totally disarmed: he retained defensive authority — the power to “repel sudden attacks,” as Madison’s notes put it. But, absent an imminent threat, the Constitution gave him no power to launch sudden attacks. “It will not be in the power of a single man … to involve us in such distress,” Pennsylvania’s James Wilson summed up in 1787.
Of course, it hasn’t always worked that way. Well before September 11, we can point to examples of American presidents launching wars without congressional authorization: the invasions of Grenada under Ronald Reagan and of Panama under George H. W. Bush; the air war over Kosovo under Bill Clinton. But the presidential wars of the late 20th century were, for the most part, exceptions to the general rule: geographically limited and temporary departures from a baseline of peace.
Since the terrorist attacks of September 11, 2001, we’ve watched the emergence of a radically different regime in which going to war is easy, frequent, and rarely debated. This system has made war America’s default setting. The use of lethal force is now so ubiquitous, so normalized, that we’re hardly able to notice it anymore.
For example, in the run-up to the 2016 election, over Labor Day weekend, the Obama administration launched some 70 airstrikes across six countries: Iraq, Syria, Afghanistan, Yemen, Somalia, and Libya. Twenty years ago, that would have led every news broadcast. But we barely looked up from the grill.
Sen. Tim Kaine (D-VA) is right when he says that “for too long, Congress has given presidents a blank check to wage war,” and he’s right to want to change that. But if our experience with the 2001 AUMF has taught us anything, it’s that presidents will push the authority they’re given as far as language will allow — and beyond.
The relevant clause of the 2001 AUMF is 60 words long. It targets the perpetrators of the September 11 attacks and those who “harbored” or “aided them.” It says nothing about “associated forces.” But that concept has become a bottomless fount of presidential authority to wage war against groups that didn’t exist on 9/11, that aren’t associated with Al Qaeda and may even be at war with them — in the case of ISIS, for example — and that do not present any serious threat to the U.S. home front.
Most of the replacement AUMFs on the table in Congress, including the one that Sen. Kaine drafted with Sen. Bob Corker (R-TN), grant far more authority than the original. The Corker-Kaine AUMF starts by providing congressional authorization for war against at least eight enemies in at least six countries.
But that’s only the beginning. Under this AUMF, the president can also, at any time, decide to wage war on new enemies, in new countries. The resolution boasts about its rigorous transparency requirements, but it leaves open the possibility that the president can bury the announcement of new targets and new battlefields in a “classified annex,” unavailable to the general public. Congress retains the right to object to mission creep, but unless it can muster a veto-proof majority to overturn the president’s decision, he gets to expand the war at will. Also under Corker-Kaine, the legislation doesn’t sunset. This is not a way of reasserting Congress’s constitutional powers, it’s a method for institutionalizing the Forever War.
Other members of Congress have introduced somewhat narrower AUMFs. On the House side, a bipartisan group of representatives led by Rep. Mike Coffman (R-CO) has drafted an alternative AUMF that features a five-year sunset. Rep. Adam Schiff’s (D-CA) AUMF features a three-year sunset. But both include broad “associated forces” provisions that allow the president to expand the target list virtually at will.
The AUMF introduced by Sen. Jeff Merkley (D-OR) avoids most of those pitfalls. It’s about as tightly and smartly crafted as a war authorization can be. It’s limited to two countries (Iraq and Afghanistan) and three groups (Al Qaeda, the Taliban, and ISIS); the countries and targets must be published and cannot be classified; and for the most part, it requires the president to come to Congress to add new countries and new groups. Even so, it bypasses the debate we should be having about the need for continuing war authorities against even those three core groups — Al Qaeda, the Taliban, and ISIS.
Instead, John and I argue for a war powers reset: sunsetting the AUMF; keeping it separate from a debate about new war authorizations; and restoring America’s default setting to peace, not war. And if the president decides that Al Shabab, for example, represents a serious, long-term danger to our national security, he is free to make that case to the people’s representatives and secure authorization for war in the way the Constitution envisioned.
We’re told that we face grave threats from emerging terrorist groups. But when the Framers crafted the Constitution, they lived in a pretty bad neighborhood. The United States was a small frontier republic on the edge of a continent occupied by periodically hostile great powers and Indian marauders. There were grave threats and dangers, and, nonetheless, our first president George Washington wasn’t sure that he had the authority to take offensive action against hostile Indian tribes without authorization from Congress.
When the Framers made the decision to limit the amount of war power that one person could exercise, I think you could argue that the threats were somewhat greater than they are today. And that’s something John is going to talk about next.
Three days after the 9/11 attacks, Congress gave the President the authority to wage war against the perpetrators of the attack and the countries that harbored them. This virtually limitless 2001 AUMF (Authorization for the Use of Military Force) has been used by three Presidents to justify 41 military operations in 19 countries. And, except for the initial invasion of Afghanistan, Congress hasn’t debated or voted on any of them. (The War in Iraq is carried out under a separate AUMF).
The costs in blood and treasure of the War on Terror are appalling, as is the cost to our civil liberties. Indefinite detention, torture, mass surveillance, extrajudicial murder, a crackdown on whistleblowers, dissenters, and press freedoms (even before Trump took office). War has always been lethal for civil liberties.
That’s why Defending Rights & Dissent, a civil liberties organization, has joined a coalition of 42 organization from across the ideological spectrum that is calling the House Foreign Affairs Committee to take up Rep. Barbara Lee’s (CA-13) bill to repeal the 2001 Authorization for the Use of Military Force (AUMF).
Lee’s bill, HR 1274, would sunset the AUMF in eight months, providing Congress ample time to debate, listen to constituents, and, if they deem necessary, authorize continued participation in any current conflict.
Indivisible Advocacy Group NO ONE SHOULD HAVE A BLANK CHECK FOR WAR. ESPECIALLY NOT DONALD TRUMP. (2019)
This gives Donald Trump a massive amount of power to unilaterally wage war. Remember, Congress—not the President—is supposed to decide when to go to war. But as long as this “blank check” is available, the administration can just cite it as legal authority without going to Congress for real debate and vote.
That lets Congress off the hook, too. They can avoid taking controversial positions if they don’t have to vote on war. They can just let things happen on autopilot and blame the administration when things go wrong.
This is a lot of power for Trump to hold, with no checks or balances. He has promised to “load Guantanamo up,” to commit war crimes, to bring back torture, and to consider creating a Muslim registry. He’s already implemented a Muslim and refugee ban citing national security concerns, and ramped up military operations that have racked up the civilian body count in Iraq, Syria, Afghanistan, Yemen and beyond. He built a war cabinet that includes John Bolton, Mike Pompeo, and Gina Haspel to carry out his destructive agenda. He has declared a fake national security emergency to justify a racist and unnecessary border wall and deportation force.
A blank check is a dangerous thing in Trump’s hands. Congress should be finding a way to take it away from him.
The Founders vested in Congress the authority to make the hard decision about whether, when, and where to go to war as the branch most accountable to the people of the United States. Congress should repeal the 2001 AUMF and hold a public debate as to whether endless war actually serves the American people. It should not sit idly by while the Executive Branch continues to expand the use of lethal force around the world at immense cost to US national security, the lives of civilians and US service members around the world, and our national treasure.
H.R. 1274 would sunset the 2001 AUMF after eight months, leaving Congress plenty of time to debate and vote on whether to authorize continued participation in any current conflict. Congress has a constitutional duty to determine and vote on when the United States goes to war. We urge you to consider and pass H.R. 1274 in the House Foreign Affairs Committee.
Alyssa Simms Repeal the AUMF (2017)
Concerned Democrats are again moving to update the legal framework of presidential war powers, but to start these motions at the AUMF is a mistake. The AUMF should be repealed, this year and no later. What it should be replaced with is less clear, but updating language to specify means of engagement (by limiting it to air strikes, combat drones, or ground troops, for example) would be a way to clarify the extent of military commitment and limit mission creep. The idea is to move away from perpetual authorized war and to curb presidential power to act unilaterally. Even so, it’s evident that America is in need of a hearty debate about how modern national security threats should be addressed with equal consideration for the changing nature of war and the standing principles of liberal democracy.
Barbara Lee No More Blank Checks for War (2018)
Congress needs to rein in the executive branch’s unchecked war powers by repealing the 2001 AUMF, ending the war in Afghanistan, and finally holding a serious debate and vote on the costs and consequences of our forever wars—before it’s too late.
Ken Gude (2018) Preventing Endless War Requires Real Congressional Oversight—Not New War Authority (2018)
Consequently, Congress should:
- Put on hold consideration of a new or revised 2001 AUMF
- Request that the Trump administration provide, in unclassified form, a complete list of countries in which the United States is at war relying upon the 2001 AUMF; organizations the United States is fighting in those countries; and the countries where the United States is providing partner assistance against terrorist groups, even if U.S. troops are not participating in hostilities
- Hold robust hearings into these ongoing conflicts in the mold of the Fulbright Hearings into the Vietnam War
- Use all available means to obtain critical information about the state of the wars, including enforcement of current reporting requirements on the executive branch
- Examine each conflict separately—in a country-by-country, conflict-by-conflict manner—to ensure that each conflict gets individualized congressional oversight and that there is an individualized decision about how to move forward in each case
The issue confronting Congress is not whether to authorize a new war—that was the question before it in 2001. Rather, Congress must now decide whether the current wars should continue, and if so, how? To answer that question, Congress must first conduct meaningful oversight of the multiple wars now being fought. It is only then that Congress and the American people will have a better understanding of these ongoing conflicts and the best path forward in each of them.
Fred Kaplan Congress Needs to Take Responsibility for America’s Wars (2019)
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.
Anika Panda A Bad Idea: Using the 2001 AUMF as Legal Rationale for Striking ISIS (2014)
Realistically speaking, little will come of the fact that the 2001 AUMF is a flimsy legal justification for going to war here. In all likelihood, should the campaign against ISIS grow into a protracted quagmire (which isn’t out of the realm of possibility), Congress will simply stitch together a supplementary AUMF treating ISIS as a discrete case. What’s more, this is almost a necessity under the War Powers Resolution. Some in Congress, notably Senator Bob Menendez (D-N.J.), are on the task already.
Scott Detrow. Tillerson And Mattis Warn Against Repealing War Power Authorizations (2017)
The Trump administration is pushing back against a growing bipartisan push for Congress to pass a new measure authorizing the use of military force against ISIS, Al-Qaida, and other terror groups.
Testifying in front of the Senate Foreign Relations Committee Monday evening, Secretary of State Rex Tillerson and Secretary of Defense James Mattis argued that measures passed by Congress days after the Sept. 11, 2001, terror attacks and in 2002 during the run-up to the 2003 Iraq war continue to hold merit.
“This has been a long 16-year conflict characterized by a very different kind of warfare,” Mattis told the committee. “The 2001 and 2002 authorizations to use military force, or AUMF, remain a sound basis for ongoing U.S. military operations against a mutating threat.”
Paul Miller .Reassessing the Congressional Foundations for War Against Jihadists (2017)
What are AUMFs, and are They Legal?
In response to this situation of ambiguity, Congress innovated a halfway measure. In situations short of conventional, full-scale war, Congress sometimes passes an AUMF as a way of providing Congressional input and accountability without resorting to a formal Declaration. AUMFs differ from Declarations of War in that the former is little more than a Congressional statement of support while the latter triggers a range of other legal authorities and responsibilities for the executive branch, according to the Congressional Research Service.
Again, the libertarians tell a myth that AUMFs are a modern innovation of the imperial presidency that has effectively made formal Declarations of War anachronistic. Again, this is false. Congress passed its first AUMF in 1798 for the “quasi-war” against France, and presidents have relied on them many times since.
Paul argues against the evidence of the Founders’ own practice. If President John Adams and the first generation of U.S. Congressmen and Senators—who were alive during the Constitutional Convention and the ratification debates of 1788—felt comfortable with an AUMF, then perhaps it is Rand Paul, not the Founders, who misunderstands the war powers of the Constitution. AUMFs are perfectly legitimate tools for governing military operations.
The problem with the libertarian position is that, if Paul is right, the United States has essentially never abided by the Constitution. That may be what Paul believes, but if so, it is an example of intellectual consistency purchased at the price of relevance.
Another way of looking at it is that the accumulated weight of past practice and precedent has come to define how we should understand the Constitution’s war powers. The President has ordered military action under some AUMFs, a handful of Declarations of War, and most often under no form of Congressional authorization at all for the entire history of the United States with almost no pushback or opposition from Congress or the Courts until recently. The weight of precedent puts an enormous burden on those who argue that Congress should play a bigger role than it has.
Should We Repeal or Replace the 2001 AUMF?
Setting aside libertarians’ quixotic crusade against AUMFs and sentimental attachment for formal Declarations of War, there is still a valid policy question about the 2001 AUMF and the grounds for U.S. counterterrorism operations today. Paul’s motion back in September failed, but some on Capitol Hill have renewed their interest in the issue after four U.S. servicemen died in Niger. Some Congressmen were apparently unaware why the U.S. had deployed troops to Africa or under what authority the president had done so, and now are concerned that the 2001 AUMF is too open-ended and unrestricted.
The 2001 AUMF is both brief and broad. The key passage makes clear Congress’ intent:
That the President is authorized 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, 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.
President Barack Obama was among the first to call for the AUMF’s repeal. Back in 2013, he called on Congress “to refine, and ultimately repeal, the AUMF’s mandate.” He tried to differentiate continuing counterterrorism operations from the wartime AUMFs that had, until that point, authorized them: “Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end.”
Obama is right that all wars must end. But the United States cannot simply declare when that end will come. It cannot decide to stop fighting wars if the enemy persists in attacking. The global war against al-Qaida is still ongoing, five years after Obama’s speech. The war against the Taliban in South Asia nearly ended in a Taliban victory in 2015 until Obama reversed course and halted the withdrawal of U.S. troops. The war against jihadists in Syria and Iraq resumed in 2014 after the rise of the Islamic State compelled Obama to reverse himself again and send U.S. troops back to the country he had pulled them out of in 2011.
Obama was transparently motivated by a desire to claim as his legacy the end of the “War on Terror” and his victory against al-Qaida. His Secretary of Defense falsely claimed in 2011 that the United States was “within reach of strategically defeating al-Qaeda.” The same month Obama said (again falsely) that the “tide of war is receding,” in announcing the withdrawal of troops from Afghanistan.
Leon Trotsky is supposed to have said, “You may not be interested in war, but war may be interested in you.” The aphorism could serve as a fitting epitaph to the Obama presidency. Obama’s over-eagerness to end the wars, rather than win them, did more harm than good and prolonged the conflicts he hoped to end. The right way to avoid endless war is to adopt a strategy designed to win them, something Obama singularly failed to do. In any case, the time to repeal the AUMF is not when jihadists still control large swaths of territory in the Middle East and South Asia.
Bruce Ackerman, a prominent scholar of constitutional law at Yale Law School, is most pessimistic of all. “For all their brave talk over the years,” he said, “Sens. Corker and Kaine have tragically capitulated to the Trump administration, and invite Congress to endorse a worldwide war on terror.”
SO, WHAT WOULD the bill actually do?
First, it discards the language in the 2001 AUMF which declares that force could only be used against those involved the 9/11 attacks — because “the nature of the ongoing armed conflict … has evolved to include numerous non-state terrorist groups.” Now, the president would be explicitly authorized to wage war against “the Taliban, al Qaeda, the Islamic State in Iraq and Syria, and designated associated forces.” The bill specifies five designated associated forces: Al Qaeda in the Arabian Peninsula; Shabab; Al Qaeda in Syria; the Haqqani Network; and Al Qaeda in the Islamic Maghreb.
This would essentially give the executive branch post hoc approval for the ways presidents have used the 2001 AUMF to date. But what’s worse, the bill gives the president functionally unlimited power to add additional “associated forces” at will.
These associated forces can be anyone that “the President determines,” as long as the president claims they are “a co-belligerent” with our previously named enemies, or were once a part of them. They also can be located in any country that the president names — meaning that once the president adds them to the list, any amount of force can be used there, from drones to all-out war.
In theory, Congress would have the power to rescind the president’s designation, but of course, this would require a two-thirds vote in both chambers to override an inevitable presidential veto — so, in practice, it would never happen. Thus, the bill takes Congress’s constitutional power to declare war, in which the president can only act when provided congressional authorization, and inverts it, by giving the president the ability to act unless a supermajority of Congress stops them.
This is so bizarre that Anders believes, “This can’t possibly be constitutional. A Congress in 2018 can’t turn the power the Constitution gave to Congress over to the president in perpetuity.”
This brings up another aspect of the Corker-Kaine bill: Like the 2001 and 2002 AUMFs, it has no time limit. “It would be one thing if, as folks from across the political spectrum have long proposed, the bill included a sunset,” says Vladeck, “so that Congress would have to affirmatively reauthorize the use of force on a regular basis.” Instead, the bill merely requires meaningless congressional debate at least once every four years.
Finally, the bill doesn’t even attempt to restrict the other legal justification that Trump has already used for the use of force, and will certainly use again in the future. At least the 2001 and 2002 AUMFs placed some weak limits on what presidents could do with them. But Trump, like many other presidents, has claimed that his Article II constitutional powers as commander in chief give him the power to use the military with few restraints.
For instance, the Trump administration did not claim that the recent bombing of Syria was legal under the 2001 AUMF, since that would plainly be ridiculous — no one believes that the Syrian government was behind the 9/11 attacks. Instead, said Defense Secretary James Mattis, “the president has the authority under Article II of the Constitution to use military force overseas to defend important U.S. national interests.” And, obviously, “U.S. national interests” could mean anything at all.
The good news, such as it is, is that Senate Majority Leader Mitch McConnell, R-Ky., appears to have no appetite to bring the Corker-Kaine bill to a vote, assuming it even passes out of the Senate Committee on Foreign Relations. That is: Senators like McConnell who have no appetite for exercising their constitutional duties may save us from senators who are doing so incompetently.
Trump administration officials insist that the current U.S. military operations against ISIS and other terrorist groups are still covered by congressional authorizations that were passed in 2001-2002, dismissing the growing calls for the administration to seek a renewed authorization from Congress.
Defense Secretary Gen. Jim Mattis and Secretary of State Rex Tillerson told a Senate Foreign Relations Committee hearing on Oct. 30 that the 2001 and 2002 Authorizations for the Use of Military Force (AUMF), which Congress intended to be used against al-Qaeda and the perpetrators of the Sept. 11 attacks, are still valid today in justifying the ongoing wars against ISIS and other terrorist groups.
“The 2001 and 2002 authorizations to use military force…remain a sound basis for ongoing U.S. military operations against a mutating threat of [terrorism],” said Mattis, “A new AUMF is not legally required to address the continuing threat posed by al-Qaeda, the Taliban, and ISIS.”
Similarly, Tillerson argued that the terrorist enemies of today are a continuation of the old ones that the United States have fought against. Should Congress decide to write a new AUMF, however, Tillerson said it should not repeal the old ones, so as not to cause operational paralysis and confusion in U.S. military operations.
Tillerson also stressed that any new AUMF should not be time-constrained or geographically restricted, which he argued would not be appropriate considering the global nature of terrorism, which evolves rapidly over time.
Ken Gude It’s About the Wars and Trump—Not the AUMF (2017)
The tragic loss of four U.S. Army Green Berets* in an ambush in Niger has sparked renewed attention on the scope of the multiple ongoing wars against terrorist groups. Debate has centered on the source of legal authority for those wars, the 2001 Authorization for the Use of Military Force (AUMF). This Monday, the Senate Foreign Relations Committee will hold a hearing on this authorization. However, as strange as it is to say, Congressional focus on this 16-year-old law is premature at this stage in the Trump administration. Instead, what is urgently needed is a strategic assessment of the wars themselves and clear-eyed consideration of President Donald Trump’s recklessness and unsuitability to be entrusted with broad war powers.
As Congress re-engages this debate, its focus must be on the actual wars—not just the legal authority. For too long, any discussion about the fight against terrorist groups has been confined to a narrow discussion of the legal authorities that support those conflicts. Bizarrely, many have used skepticism about the AUMF as a substitute for a more politically risky path of questioning the actual wars, leaving any Congressional action to focus on obtaining a new vote on a new or renewed authorization for those wars. However well-intentioned, that dynamic only further entrenches the fight against terrorist groups a “forever war.”
Before acting on any new war authority, Congress must examine the major strategic shifts occurring in the fight against terrorist groups in multiple theaters. The Trump administration has announced that it is sending more troops to Afghanistan, returning to a war footing against the Taliban. Additionally, the administration is, reportedly, putting CIA paramilitary teams on the ground in kill-or-capture operations against Taliban militants. The fall of Raqqa marks a turning point in the fight against the Islamic State, as the group has lost most of its territory in Iraq and Syria. Big questions now must be answered about the direction of U.S. military operations against IS.
Yemen remains a debilitating quagmire, as the Saudi-led and U.S.-backed war against Houthi rebels there continues to falter. Leaked emails show even the Saudis admit its military campaign has been a “strategic failure” and that al Qaeda in the Arabian Peninsula has capitalized on the fighting as a means to gain territory and strength. Additionally, U.S. officials have not adequately addressed disturbing reports of torture and abuse of Yemeni detainees by forces of the United Arab Emirates, sometimes with U.S. personnel present at the same military base.
U.S. military engagements are either escalating or beginning across Africa and Asia as well. A U.S. airstrike reportedly killed 150 al-Shabab militants in March of this year, part of a renewed U.S. push against the group. Violence in Somalia is also escalating following the mid-October truck bombing in Mogadishu that killed more than 300 people. And the Trump administration is reportedly considering changing Obama-era rules governing the use of deadly force outside of traditional war zones that “would ease the way to expanding such gray-zone acts of sporadic warfare to elsewhere in Africa, Asia, and the Middle East.”
Congress must assess critical questions about the conflicts, including whether U.S. military engagement is still necessary, and, if so, at what level. Congress must also examine the Trump administration’s strategy for fighting and winning these conflicts.
Layered onto any consideration of providing President Trump with renewed war powers is the growing bipartisan recognition that Trump is unfit to be commander in chief. The Republican chairman of the committee holding Monday’s hearing, Sen. Bob Corker (R-TN), said this week that President Trump must be “contained” by his senior staff or else he could “move our country into a binary choice which could lead to a world war.” Corker added that Trump has “a lack of desire to be competent.” Republican Sen. Jeff Flake (R-AZ), also on the Foreign Relations Committee, warned of the “senseless danger” of Trump hurling “childish insults” at “a hostile foreign power.”
It is simply unheard of to witness senior members of the sitting president’s party deliver such strong verdicts on his obvious unfitness for office. It is even more remarkable in this era of intense partisan polarization to see this kind of criticism of the commander in chief by members of his own party. This goes beyond “not normal” and into truly uncharted territory. Given this growing sense of alarm regarding the danger President Trump poses to the security of Americans and the world, it would be fundamentally irresponsible for Congress to provide him with broad war powers that gives him discretion about when, where, and against whom the United States initiates military action.
Congress must tackle these challenges head on. It must debate the actual wars, not just the legal authority that supports them. And it must deal with the extremely dangerous elephant in the room; that Trump is reckless, incompetent, and so unfit to be commander in chief that he must be contained to limit the threat he poses to the security of the United States and the world. That is the debate the American people deserve and need before any consideration by Congress of new or renewed authorization for the use of military force and what measures it can take to put meaningful limits on the war powers of this president.
Say No to the AUMF (2015)
Members of the House and Senate may rush to approve his draft. They understandably want to support the destruction of an Islamic extremist group that controls large swaths of Syria and Iraq, attacks U.S. allies in the region, and has murdered American hostages. But Congress should find other, real ways to signal opposition to ISIS, such as increasing spending on the military that must conduct the real fight, instead of cooperating with Obama’s flawed approach to war.
At first glance, the authorization seems worthy. It places the fight against ISIS on the firmest constitutional footing by joining the president’s commander-in-chief power with Congress’s authorities over the military. As a legal scholar and, later, an adviser in the George W. Bush administration, I have argued that the president has the constitutional authority to use force abroad without a declaration of war or legislative authorization; the Framers believed that Congress would exert a check through its power over the purse. But the president enjoys the best possible position when the Constitution’s full war powers unite behind him, and when the branches of government act as one politically. Even though George W. Bush, like the presidents before him, agreed on the executive’s authority to act unilaterally, he still sought legislative authorization for the wars in Afghanistan and Iraq.
But a closer reading of the Obama proposal reveals severe flaws that undermine this purpose. First, and most glaring, the authorization will have only a three-year lifespan, after which Congress would have to pass a new law to resurrect the war. No important declaration of war or authorization to use force has ever had such a sunset, because no armed conflict will ever obey an arbitrary deadline. Even the Framers, removed by centuries from our modern battlefield with its non-state enemies and asymmetric tactics, understood this. Alexander Hamilton argued against critics of the Constitution who wanted to impose similar limits on the government’s war powers (such as forcing armies to disband every year): Because the “circumstances that endanger the safety of nations are infinite,” he wrote in Federalist 23, “no constitutional shackles can wisely be imposed on the power.”
Hamilton and our Constitution’s Framers understood that war was so unpredictable that it could not be dictated by rules beforehand. But this is exactly the course on which the White House’s Authorization for Use of Military Force (AUMF) would set the nation. It makes little sense to announce to your enemies in advance when you will stop fighting. A three-year deadline will have the same harmful effects that Obama’s arbitrary withdrawal dates in Iraq and Afghanistan did. Groups and nations opposed to the United States, such as the Taliban in Afghanistan, ISIS in Syria and Iraq, and Iran in the Middle East, will simply wait us out. Or they may employ destructive delaying tactics in the hopes that war-weariness will lead a small minority in Congress to block a reauthorization in 2018. Try to imagine that, on December 8, 1941, President Franklin D. Roosevelt had asked Congress for a declaration of war that would last only three years. It is impossible, because FDR took war seriously and understood that our enemies fight not according to our plans, but according to their own.
Other unprecedented provisions in this draft AUMF further underscore the Obama administration’s lack of seriousness in pursuing ISIS. In addition to the three-year deadline, the White House proposes that Congress prohibit the use of force “in enduring offensive ground combat operations.” This bizarre restriction has never appeared before in any declaration of war or authorization for combat operations, nor does the proposal define it. Does it prohibit the deployment of large bodies of troops, such as a whole brigade or division (which, we have informed ISIS, will be there no longer than three years)? Does it restrict the use of heavy armaments, such as M-1 Abrams tanks? Does it bar the construction of bases and military infrastructure?
That said, President Obama does have a few legal grounds for attacks on the Islamic State.
To begin with, under Article II, Section 2 of the Constitution, the president is commander-in-chief of the armed forces. He is also vested with all of the executive power of the federal government. This has long been understood to allow the president to initiate military hostilities to protect the national security of the United States. Almost no one questions the president’s authority to respond to sudden attacks on the United States, and most people agree that this includes strikes that anticipate an attack (such as striking the Japanese fleet on its way to Pearl Harbor). This power should also allow the president to attack countries and terrorist groups to prevent them from harming the U.S., even if not with an imminent attack. (My former Justice Department colleague Robert Delahuntyand I wrote a law-review article after the 9/11 attacks laying out the historical precedent for this view of presidential authority.)
I make the case for this in my new book, Point of Attack: Preventive War, International Law, and Global Welfare, but if you don’t believe me, believe Congress. In its 2001 Authorization for Use of Military Force (AUMF), passed with overwhelming support one week after the 9/11 attacks, Congress declared: “The President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
Even Congress recognized the president’s traditional authority to use force to prevent future attacks on the United States — and there seems to be no doubt that the Islamic State seeks to carry out such attacks.
The 2001 AUMF states:
The President is authorized 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, 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
The 2001 AUMF would apply to the Islamic State if the group is linked to al-Qaeda or other groups/nations/organizations/persons involved with the 9/11 attacks. At one point, it appears, the head of the Islamic State took an oath of allegiance to al-Qaeda, but reports now claim that the former has broken with the latter. Because the AUMF’s application depends on this crucial question, the Obama administration — if it seeks to rely on the 2001 authorization — should present evidence to Congress and the American people proving the link.
Even if the 2001 AUMF did not apply, however, the Authorization for Use of Military Force in Iraq, passed by Congress in October 2002, provides more direct legal support. It states:
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
Despite the fact that the Obama administration was seeking the 2002 AUMF’s repeal last spring (another sign of how it erred in judging the threat from the Islamic State), this law authorizes U.S. military involvement in Iraq. Notice that it does not state that the authority is limited to overthrowing Saddam Hussein. It gives authority to the president to prevent national-security threats emanating from Iraq. The current such threat is that the Islamic State is developing a terrorist state with control over a large swath of Iraq, from which U.S. military and intelligence analysts believe the jihadist group will carry out attacks on the U.S. and its allies.#page#
Furthermore, the relevant U.N. Security Council resolutions committed the U.S. to the reconstruction of Iraq, its territorial integrity, and political independence, and authorized states to prevent Iraq from threatening the region’s peace and stability. While President Obama may wish that mission were completed, the rise of the Islamic State shows clearly that it is not. Air strikes on the Islamic State and military aid to friendly Iraqi forces fall within the actions authorized by the text of the AUMF. (Interested parties can find a discussion of the U.N. resolutions in a short piece of mine in the American Journal of International Law.)
U.S. diplomacy can be effective when we have partners willing to make decisions, when all parties feel an urgency to make those decisions and when gaps separating the parties can actually be bridged. The Iran nuclear agreement, while greatly flawed, is a case in point. It succeeded because it was not a transformational but a transactional arrangement, a highly detailed arms-control accord of arguably limited duration and scope that both the United States and Iran wanted for their own reasons.
But when it comes to matters that cut to the core of people’s identities — such as Jerusalem or Palestinian refugees, or the social engineering required to end Syria’s civil war — or creating an outcome in Iraq or Libya that produces stability and good governance, the United States doesn’t have the horses to pull the wagon. The inconvenient reality is that we will never have a greater stake in this region, or more power to remedy its ills, than those who live there.
I haven’t given up hope for smart and well-timed U.S. diplomacy. But I’ve abandoned my illusions of just how much America is able and willing to do to repair a badly broken, cruel and unforgiving Middle East.
As the fix-it people, Americans have a hard time accepting that we can’t sort out conflicts when those directly involved aren’t willing or able to do so. But sometimes, it makes more sense for our diplomats and negotiators to stay home rather than look weak and ineffective while searching for solutions to problems they simply cannot resolve.