The time has come for Congress to repeal, or “sunset,” its sweeping 2001 Authorization for Use of Military Force (2001 AUMF). Enacted just three days after the terrorist attacks on September 11, 2001, the 2001 AUMF was enacted with good intentions – to give President George W. Bush the authority to deal with the parties responsible for the attacks on the United States. But over time, the measure has come to symbolize the steady normalization of unilateral war making by presidents, and the erosion in Congressional power over military decisions. It has become the legal justification for a perpetual, ever-expanding war that undermines the constraints on government power.
The 2001 AUMF represented a novel approach to modern-era military force authorizations. After the September 11, 2001, terrorist attacks Congress authorized the President to use “all necessary and appropriate force against those nations, organizations, or persons” who perpetrated the attacks “in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”
This authorizing language is broad in scope because it empowered the President to target non-state actors, even to the individual level, instead of only states. No previous AUMF in U.S. history had ever authorized such force. It’s important to note, however, that the language of the 2001 AUMF is notably narrower than the legislation originally proposed by the Bush Administration. The Bush Administration’s proposed AUMF would have provided the President the authority to use military force not only against Al Qaeda and the Taliban, but also to counter all terrorist threats generally, without necessitating a connection to the September 11 attacks. Because Congress did not accept this broader language, some have argued that Congress deliberately chose to limit presidential authority to respond to the threat posed by those who carried out and supported the attacks.
As a result of this (real or perceived) limitation, the executive branch appeared to create frameworks and procedures to determine which uses of force fell under the 2001 AUMF’s authority. Prior to the U.S. military campaign against the Islamic State that began in summer 2014, executive branch officials often interpreted the 2001 AUMF as granting the executive branch the authority:
- To enter into and prosecute an armed conflict against Al Qaeda and the Taliban in Afghanistan.
- To use military force against Al Qaeda and the Taliban outside of Afghanistan; provided, however, that such uses of force meets a higher standard of threat to the United States and that the United States use limited, precise methods against specific individual targets rather than general military action.
- To use military force against groups associated with Al Qaeda and the Taliban; provided, however, that such forces are operating in some sort of coordination and cooperation with Al Qaeda and/or the Taliban, and does not simply share similar goals, objectives, or ideologies.
As armed conflict against Al Qaeda and the Taliban has progressed, and U.S. counterterrorism strategy has evolved, U.S. use of military force has expanded outside of Afghanistan. By its own terms, then, the 2001 AUMF has become obsolete, as it focuses directly on preventing the perpetrators of the September 11, 2001, attacks from carrying out further attacks against the United States, most of whom by now have been killed or captured.
Despite this, the 2001 AUMF remains central to the executive branch’s justification for expanding efforts globally to counter terrorism in any country where terrorist groups operate and plan to attack the United States or U.S. interest.
According to information provided by the executive branch in the 13-plus years since the 2001 AUMF was enacted, presidential notifications to Congress have reported uses of military force, military deployments, and other activities in a number of countries and for a number of purposes, including to: (1) deploy U.S. Armed Forces and conduct military operations in several countries in a number of regions of the world; (2) counter generally the terrorist threat against the United States; (3) engage terrorist groups “around the world”; (4) engage terrorist groups “on the high seas”; (5) detain individuals at Guantanamo Bay, Cuba, and to take other actions related to detainment decisions; and (6) conduct trials of terrorist suspects in military commissions.
Most recently, Obama Administration officials have interpreted the 2001 AUMF (in conjunction with the AUMF Against Iraq Resolution of 2002) to authorize the President to order certain U.S. military strikes against the Islamic State in Iraq and Syria, as well as the Khorasan Group of Al Qaeda in Syria. In many ways, this is the most significant expansion of military action taken pursuant to 2001 AUMF authority.
The President’s September 2014 notifications represented a market shift in at least two important ways. First, the military campaign against the Islamic State represents an expansion of the scope of military operations previously outside Afghanistan under 2001 AUMF authority. Second, the stated reasons for the military campaign have as much to do with concern for Iraq’s stability, the stability of the region, and the desire to support moderate rebel groups in their fight against the Islamic State and the Bashar al-Assad government in Syria as they do with responding to an imminent threat to the United States, its citizens, or its personnel and facilities abroad.
The Obama Administration has stated that the Islamic State can be targeted under the 2001 AUMF because: (1) its predecessor organization, Al Qaeda in Iraq, communicated and coordinated with Al Qaeda; (2) the Islamic State currently has ties with Al Qaeda fighters and operatives; (3) the Islamic state employs tactics similar to Al Qaeda; and (4) the Islamic State, with its intentions of a new Islamic caliphate, is the “true inheritor of Osama bin Laden’s legacy.” There is perhaps no better example than this of how the fight against terrorist groups has been improperly expanded and extended to the point that there are no effective restraints on presidential power in this area.
Congress, however, never intended to authorize a perpetual war. And yet, Congress has abdicated its role in directing the use of U.S. military force to counter terrorist threats. Congress authorized the use of military force in haste during the initial reaction to the September 11 attacks, and has taken little legislative action since to tailor the use of such force to current circumstances. In addition to concerns about the fight against the Islamic State, there are ongoing concerns that transparency in executive branch actions is lacking – especially regarding the use of unmanned aerial vehicles (UAVs) – and that Congress has neither voiced effective demands for information, nor asserted its role in decision-making through consultation and oversight.
It is time for that to change. Counterterrorism operations will likely continue to expand in geographical and operational scope, and Congress should take action to have a role in directing the course of using force against terrorist groups into the future. The only way that is possible is by repealing the 2001 AUMF outright.
Repealing the 2001 AUMF would have the immediate effect of limiting presidential authority to use force against terrorist groups to the powers contained in Article II of the Constitution and the international law of self-defense – standards that are (in most cases) more restrictive than the authority in the 2001 AUMF. And it would require the executive branch to identify targeted groups and geographic areas through an administrative process that includes congressional notification and waiting periods before becoming effective.
Repealing the 2001 AUMF, however, is not the end of the matter. American forces are deployed around the globe, fighting new threats and old adversaries. Congress must protect legislative power by ensuring that there is a new AUMF to replace the old one, one that is tailored to achieve clear goals. The legislative language should both allow America to continue to aggressively pursue legitimate terrorist threats while protecting the rest of us (as much as possible) from the executive branch overreach that has stemmed from the 2001 AUMF.
For years, President Obama has repeatedly promised to revise and ultimately repeal the 2001 AUMF out of concern that it could lead to “a perpetual war” that “will prove self-defeating and alter our country in troubling ways.” Obama is right, but his words are hollow without action.
“President Obama is right to say that we cannot be on a war footing forever – but the time to take our country off the global warpath and fully restore the rule of law is now, not at some indeterminate future point,” said Anthony D. Romero, executive director of the American Civil Liberties Union, in a statement in 2013.
Photo Credit: Official U.S. Navy Page on Flickr (via creative commons license)