Repeal the AUMF

This January, the New America Weekly's writers are proposing a series of policy resolutions. These are actions that policy makers and ordinary citizens can take to make the world a better place in 2017.

As the overeager unified Republican Congress continues to search for controversial pieces of legislation to gut, it should resolve to turn its ire to the 2001 Authorization for Use of Military Force (AUMF).

Congress passed the law three days following 9/11 in order to give President Bush full authority to pursue terrorists associated with the deadly attacks. The text of the law is terse, stating only:

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.

 The law was the initial impetus for putting boots on the ground in Afghanistan. Bush identified al Qaeda as the culprit for the attacks on September 11^th and determined that the Taliban—the ruling party of Afghanistan at the time—were giving the group safe haven within Afghanistan’s borders. In October 2001, under the authority of the AUMF, Bush sent U.S. forces to the unstable country which marked the beginning of more than a decade of military operations against al Qaeda and the Taliban

In the fifteen years since it was first enacted, the law has since been cited in many instances unrelated to its original framing. For example, the Department of Justice used it in the 2007 lawsuit, American Civil Liberties Union v. National Security Agency, to justify domestic electronic surveillance without obtaining a warrant, arguing that the AUMF implicitly gave the president legal authority to conduct the surveillance.

Of course, the Department of Defense and several U.S. officials have also cited the legislation to authorize various military actions around the world. By design, the 2001 AUMF was never limited in scope. This is why Obama’s press secretary Peter Cook was able to cite it in September 2016 as justification for the administration’s airstrikes against ISIS in Libya—using a law that had been passed before the group even existed to justify legal authority for military actions that Congress had never approved.  

Thus, while what the law says is straightforward, what it implies is essentially at the discretion of the executive branch -- which is why it’s received criticism on both sides of the aisle. Obama attempted to amend the law in 2015 to authorize military action against ISIS, mostly as a formality, but also to give the president more flexibility in regards to ground troops. Republicans refused to amend the legislation under the Obama administration out of what seemed to be an effort to politically disempower a Democratic president.

It’s hard to commit ground troops (outside of special forces) to a conflict without suffering politically and hemming up your party in the next election, meaning that by forcing him to rely on the AUMF they put him in an awkward position. For Democrats, by contrast, the hesitation to alter the law was ideological, stemming from the desire to limit the president’s war authority in the event of the election of an extremely hawkish Republican candidate—which, to be fair, turned out to be a prescient concern.

Unfortunately, the decision of both parties to effectively do nothing has given Donald Trump the ability to do anything. In Politico, Austin Wright noted this, warning, “Without a new resolution, Trump is likely to have almost unlimited powers as he takes over U.S. military involvement in Iraq, Syria and Afghanistan and potentially ratchets up ongoing efforts to hunt down and kill suspected terrorists the world over.” And while most Americans are violently against entering another long-term war in the Middle East, Trump’s website is clear on his framework for combating the international terror threat, stating his intent to “Pursue aggressive joint and coalition military operations to crush and destroy ISIS.” In case that wasn’t clear, in a 60 Minutes interview with Lesley Stahl, he clarified, "We're going to declare war against ISIS. We have to wipe out ISIS,” and even suggested he’d send troops.

ISIS is in Syria, ISIS is in Iraq, ISIS is in Libya, and ISIS is also in central and southeast Asia, so a war on ISIS is already broad in scope. And the group continues to inspire attacks around the world—including in America—complicating the matter further. Aaron Blake argued in the Washington Post that regardless of Trump’s ISIS war ambitions, Congress would never move to declare war on the group and technically hasn’t declared war on anyone since WWII. But what’s novel about the 2001 AUMF is that it gives the president power to attack nontraditional targets – individuals, not just states. The trouble is that an AUMF has the same practical implications as a war declaration. It’s already being used as the legal authority to attack ISIS, and with no limitations it’s unclear how far Trump can take it.  

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.