New Legislation Offers Opportunity to Address 2001 Authorization for Use of Force, Amid Fears of War with Iran

Amid increasing fears that the Trump administration is sliding into a war with Iran, many lawmakers have been forcefully arguing against such a course and emphasizing that the administration lacks the necessary congressional authority to do so. Members of Congress have underscored that the 2001 Authorization for the Use of Military Force (AUMF), passed days after the September 11 attacks, cannot be interpreted to cover the government of Iran. Thanks to a new amendment to be introduced today to must-pass legislation, Congress will have the opportunity to wrest greater control over its authorization of war under this and future presidents.

The past two months have seen a flurry of bipartisan activity in Congress. In April, Senators Tom Udall (D-NM), Rand Paul (R-KY), and Dick Durbin (D-IL) introduced the Prevention of Unconstitutional War with Iran Act of 2019, and Representatives Anna Eshoo (D-Ca.) and Mike Thompson (D-Ca.) filed a House companion bill.  When Secretary of State Mike Pompeo refused to assure the Senate Foreign Relations Committee that the 2001 AUMF did not apply to Iran, Sen. Paul responded: “You do not have the permission of Congress to go to war with Iran.” Last week, House Speaker Nancy Pelosi similarly warned the administration that “they have no authorization to go forward in any way.” Most recently, more than 100 Democratic members of the House sent a letter to President Trump about the deteriorating situation with Iran, stating that “[t]he 2001 AUMF is not a blanket authorization to use force or wage war whenever and wherever desired by the President of the United States,” while Reps. Andy Levin (D-MI) and Thomas Massie (R-KY) introduced the AUMF Clarification Act, which explicitly provides that neither the 2001 AUMF nor the 2002 Iraq AUMF authorize force against Iran.

Many legal experts agree that stretching the 2001 AUMF to cover Iran is untenable. Former State Department Legal Adviser Harold Koh labeled such a claim “ridiculous.” Former State Department Legal Adviser Brian Egan and National Security Council Deputy Legal Adviser Tess Bridgeman wrote: “The 2001 AUMF does not authorize the use of force against Iran. Iran was not implicated in the 9/11 attacks, Iranian forces are not al Qa’ida or the Taliban or their associated forces, nor are they a ‘successor’ to any of those forces.”

As Steve Vladeck and Bridgeman recently wrote, “it is simply beyond dispute that the Congress that passed the AUMF in 2001 was not remotely thinking about authorizing the President to engage in a war with Iran two decades later.”

Vladeck and Bridgeman also noted, “the fact that we’re even having this conversation is yet further proof … of the desperate need for Congress to revisit the 2001 AUMF.”

And this week, Congress has an opportunity to do just that.

Rep. Barbara Lee (D-CA) will offer an amendment today to the must-pass Defense Appropriations Act that would repeal the 2001 AUMF eight months from passage of the Act. The eight-month period is expected to give Congress the opportunity to draft new legislation to address ongoing wars.

Rep. Lee has offered this amendment several times over the years, having long championed the need to repeal the outdated authorization and force a debate and a vote on current wars. What makes this year different is that the current composition of Congress provides a genuine prospect that the amendment will pass—not only in Committee, but for the first time, on the House floor.

As readers may recall, the House Appropriations Committee adopted this very measure two years ago on a bipartisan voice vote. However then-Speaker Paul Ryan stripped out the provision before the bill went to the House floor. Last year the amendment was defeated in Committee on a straight party-line vote.

Now, with a Democratic majority in the House and growing pressure for lawmakers to reassert their constitutional war powers, this may be the first time that a chamber of Congress votes to repeal the problematic and outdated 2001 AUMF.

In addition to concerns that the administration might seek to bypass Congress and use force in Iran and Venezuela, among other places, Congress has faced increasing pressure from other stakeholders, across the political spectrum, to address the nearly 18-year-old authorization.

The conservative group Concerned Veterans for American and the progressive group VoteVets recently launched a joint campaign, calling for Congress to repeal both the 2001 and 2002 AUMFs. Another veterans group, Common Defense, has had several prominent Democratic members of Congress sign a pledge to “fight to reclaim Congress’s constitutional authority to conduct oversight of U.S. foreign policy and independently debate whether to authorize each new use of military force.”

Forty-two non-governmental organizations recently sent a letter to House Foreign Affairs Committee Chairman Eliot Engel and Ranking Member Michael McCaul, urging them to take up Rep. Lee’s standalone AUMF repeal bill in Committee. The bill (H.R. 1274) currently has 54 co-sponsors and has received official endorsement from the 97-member-strong Congressional Progressive Caucus, which was instrumental in championing the recent vote to end U.S. participation in the Saudi-led war in Yemen.

There is also increasing discomfort over the fact that teenagers who were not yet born when the 2001 AUMF was enacted may now be sent to fight wars under its mantle. Meanwhile 80 percent of the current membership of Congress has never cast a vote one way or the other about sending U.S. troops into harm’s way. Many members of Congress have criticized the executive branch’s unilateral expansion of the authorization’s scope, yet they have also continued to appropriate funds for current conflicts. According to Brown University’s Costs of War Project, the price tag for current wars is projected to reach $5.9 trillion by the end of 2019. So while the executive branch is certainly responsible for the tortured interpretations that have broadened the AUMF’s ambit, Congress’ hands aren’t exactly clean either.

Now, as debates about war with Iran and congressional authorization rage, Congress has an opportunity to take on the elephant in the room — the aged 2001 AUMF. Should Rep. Lee’s measure make it into the final Defense Appropriations Act, it would force Congress to debate and vote on the scope of current wars and affirmatively decide whether to authorize continued participation in any of these conflicts. Members of Congress have certainly not been shy to criticize the executive branch’s usurpation of their constitutional war powers. The question is, will they finally step up and do something about it?

Image: Win McNamee/Getty 

 

About the Author(s)

Heather Brandon-Smith

Legislative Director for Militarism and Human Rights at the Friends Committee for National Legislation (FCNL). Follow her on Twitter (@HBrandonSmith).