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.