Three days after the terrorist attacks of September 11, 2001, Congress passed, within the space of a few hours, a joint resolution authorizing the president to use “all necessary and appropriate force” against the parties behind the attack, as well as those anyone “aided” or “harbored” them. This authorization for use of military force (AUMF) seemed logical and necessary at the time: As per the Constitution, Congress needed to sign off on a proper war against al Qaeda and the Taliban to eliminate the enduring threat they posed to American security.
But in the 17 years since, its wording has proven broad and easily contorted by presidents who have used it to wage a forever war on terror writ large, not just on the groups who perpetrated the September 11 attacks. It has legally underwritten air strikes, combat missions, special ops, and training and advising work in over a dozen countries, pursuing groups like the Islamic State, which did not even exist when the AUMF was issued. It also seems to be part of the Trump administration’s justifications for its military involvement in the Syrian conflict. This is a reality the legislators who passed the AUMF never could have imagined or desired when they authorized a response to the attacks.
“There has been a growing recognition of the problems stretching from the 2001 AUMF,” noted Benjamin H. Friedman of Defense Priorities, an anti-interventionist security issues think tank. Democratic Congresswoman Barbara Lee, the only member of the House to vote against the resolution in 2001, has been leading efforts to repeal it for years. Attempts to wipe out the AUMF, or replace it with something more restrictive, have grown even more frequent in the years since the Obama administration used it to open hostilities with the Islamic State. And though energies for repeal efforts rise and fall, as for any legislative priority, revelations of America’s involvement in on-the-ground operations in Niger last year and developments in Syria this year have resulted in a new wave of debate on the AUMF. Opponents to the current AUMF range from centrist Republicans like Jeff Flake and Bob Corker to more hardcore ideologies like Rand Paul and Mike Lee, and from centrist Democrats like Tim Kaine to more progressive forces like Jeff Merkley. And that’s just in the Senate.
“If the leaders of the party in power pushed for a new AUMF, and were willing to use political capital on it,” argued Friedman, it could potentially draw down America’s “forever war.” Yet for all this opposition and potential, for all the alternative proposals for new limitations on executive war-making discretion, none of the experts I’ve spoken to believe we will see the fall of the current AUMF regimen anytime soon. Congress doesn’t have the willpower or desire, it seems, to take back its war powers. Nor does it face enough pressure to push it to do so.
One might assume the greatest impediment to Congress revoking or replacing the AUMF is presidential pushback. Presidents have a fair number of inherent war powers, including a broad allowance to use force against an “imminent threat” for up to 60 days before seeking congressional approval. The executive branch tends to like the leeway of the AUMF to operate without regard to geographic or temporal limits, and the Trump administration has made it clear that it will oppose any new AUMF that is so constrained.
That doesn't change the fact that under the Constitution, Congress is supposed to have responsibility for war—however the experts I’ve spoken to say Congress isn’t eager to take that responsibility back. “They see more risk in exercising their war powers than delegating them,” Friedman explained. “If things go well, they can say that they provided the authority” via the old AUMF. “If they don’t go well, they can say that the executive branch failed to use its authority properly.”
Given that most of the legislators who voted on the 2001 AUMF are no longer in office, a vote on repealing or replacing this authorization would be the first time many of them went on record with their views on our global military activities, added Laura Hall, a Bipartisan Policy Center expert with experience as a Republican congressional advisor on security matters “Stepping out there on this topic, either for or against” the existing AUMF war-making framework, she said, “may not be something they are eager to do.” Party leadership seems to avoid advancing legislation that would lead to debate on the AUMF to shield legislators from such a hard vote.
Unfortunately, there is not much public pressure on Congress to take up this issue—as Friedman explained, America’s modern wars actually don’t put much stress or cost on most voters. Sure, military operations aren’t cheap. But they are mostly financed through deficit spending rather than tax burdens. And although we see some grim reports in the news, military and medical innovations have managed to keep the American death toll relatively low, which limits the political hardship of waging eternal war. While many citizens have misgivings about our widespread foreign ventures for varied reasons, Hall told me that “with all the other issues the American people are concerned about… this hasn’t risen to the top yet.”
Even if there was widespread demand for a new AUMF, “there is also serious disagreement on what should replace existing authorities,” Friedman said. This became clear during the Obama administration, when Congress dithered about passing a Syria-focused AUMF in 2013, then refused to pass one targeted at fighting the Islamic State at Barack Obama’s request in 2015, in large part because legislators couldn’t agree on what limits to put on such a new authorization.
Some, like Barbara Lee, believe we should just scrap the AUMF and force votes on every new anti-terror campaign. All new AUMFs, this argument holds, ought to have firm spatial, temporal, objective-based, and force-level limitations. More hawkish legislators believe we should replace the current AUMF with something similarly flexible, but a little more transparent and constrained.
Many proposals strike some compromise between these two positions. Merkley’s recent bill, for instance, would issue a new authorization to fight only al Qaeda, the Islamic State, and the Taliban in Afghanistan and Iraq and would sunset after three years. It would offer expedited renewal or expansion of the authorization, providing limits and transparency with flexibility. Corker and Kaine’s bill, meanwhile, would authorize the president to fight the same forces, but in more countries. It would allow him to expand the fight to more groups or nations, but potentially keep these expansions of the conflict a secret from the public, and only seek congressional approval days after operations began. Congress would have to choose if it wanted to modify or end that authorization every four years. As advocates of one approach or another can find something to hate in each of these proposals, it is hard to rally a critical congressional mass behind either of them, or behind Lee’s straight repeal proposal.
Congress’s apparent inability to tackle the current AUMF regimen and the broad and secretive state of perpetual war it enables is a major problem. As Friedman noted, the concept of a congressional check on executive war making powers is a vital component of the restraint ostensibly baked into the American system of governance. Unless Congress reasserts that power, war making will continue to be an unchecked executive prerogative. And America will likely remain in a perpetual series of "anti-terror" wars for the foreseeable future.
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