Now is the Time to Repeal the 2002 AUMF

Four Reasons to Repeal the 2002 AUMF in the FY20 NDAA

Right now, Congress has the opportunity to finally repeal the 2002 AUMF, or the “Authorization for Use of Military Force Against Iraq Resolution of 2002.” It should take it.

Rep. Barbara Lee’s (D-Ca.) proposed amendment to the Fiscal Year 2020 National Defense Authorization Act (NDAA) is as common sense and straightforward as they come – it would take an unnecessary authorization to use military force off the books, ensuring it can’t be improperly invoked in the future to drag the United States into unauthorized war. It would also reassert congressional control where it has been sorely lacking. Here’s the full text:

“The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 50 U.S.C. 1541 note) is repealed.”

How does such a short amendment do all that, and why is it so important that Congress repeal the 2002 AUMF now? Here are four reasons, any of which alone would be reason enough to vote yes on the repeal amendment.

1. The 2002 AUMF is Not Needed. Put simply, its repeal would have no impact on current U.S. military operations. It wouldn’t create any uncertainty on the battlefield or adversely impact our national security. That’s because, unlike the 2001 AUMF, the United States is not solely relying on the 2002 AUMF for any ongoing military operations. While the Obama and Trump administrations have included the 2002 AUMF as an alternate or additional basis to support operations against ISIS in Iraq and Syria, the executive branch is primarily relying on a different force authorization, the 2001 AUMF, to fight ISIS. And the 2001 AUMF would be sufficient to authorize those operations in the view of the executive branch.

The 2002 AUMF differs dramatically from the 2001 AUMF in this regard. Over the decades since the 9/11 attacks and through to today, the 2001 AUMF has served as the source of domestic legal authority for an ever-expanding set of operations against al-Qaeda, the Taliban, their “associated forces” (like AQAP in Yemen and al-Shabaab in Somalia), and most recently ISIS, in numerous countries across the globe. In contrast, the 2002 AUMF has essentially laid dormant for years. Before including it as an additional source of authority for ISIS operations, the Obama administration had supported its repeal in public statements and testimony before Congress. And what’s more, even after invoking it as “alternate statutory authority” in 2014, the official Obama administration position remained that it should still be repealed, as explained in this statement provided to the New York Times.

2. Congress Enacted the 2002 AUMF for Specific Purposes that were Resolved Long Ago. Congress passed the 2002 AUMF to authorize U.S. military force against Saddam Hussein’s regime. Wisely, Congress specifically stated the two purposes for which that force was authorized – defending against the threat posed by Hussein’s Iraq, and enforcing U.N. Security Council Resolutions regarding Iraq. The operative section of the 2002 AUMF reads – in full – as follows:

(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

The long preamble to the 2002 AUMF and its legislative history make clear that Congress had a specific threat – that posed by Hussein’s regime – and a specific set of U.N. Security Council resolutions – many of which are named and described in the authorization – in mind.

It hardly needs stating that much has changed since 2002 in and around Iraq. The current government of Iraq is a close partner of the United States. It certainly does not stand accused by the international community of violating its international legal obligations relating to weapons of mass destruction or threatening its neighbors.

Indeed, over a decade ago, back in 2008, law professor Michael Glennon explained that the specific threats for which Congress authorized the president to use force in the 2002 AUMF have long since ceased to exist:

The legislative history demonstrates that Congress saw the “threat posed by Iraq” as stemming from the government of Saddam Hussein, which no longer exists. Likewise, the authorization to enforce UN resolutions was aimed at resolutions outstanding in 2002 — principally those relating to Iraq’s weapons of mass destruction program. Those un resolutions have been fulfilled. Congress, in short, in 2002 did not authorize an open-ended military involvement in Iraq.

Repealing the 2002 AUMF would not only acknowledge that the threats for which it was passed no longer exist, but also that Congress recognizes our current reality. As Sen. Time Kaine (D-Va.) said when he and Sen. Todd Young (R-In.) introduced bipartisan legislation to repeal two AUMFs regarding Iraq:

It’s past time to repeal both AUMFs and formally mark the end of the Iraq War that resulted in a devastating loss of life and wounded tens of thousands of our troops. It makes no sense that [the 1991 and 2002] AUMFs remain in place against a country that is now a close ally.

3. The 2002 AUMF is Susceptible to Abuse. While the 2002 AUMF wasn’t intended to be, and shouldn’t be read as, a permanently available force authorization to address any threat that might relate to Iraq, recent events have given reason to fear the executive branch could use it that way. AsHeather Brandon-Smith has explained, Congress surely could not have foreseen in 2002 that the AUMF it passed to authorize war against Hussein’s Iraq would be invoked as an “alternative” source of authority for the conflict against ISIS, which of course did not yet exist, and in which the Iraqi government is an ally not an enemy.

But more concerning, recent communications between the executive branch and Congress implied other uses for the 2002 AUMF that could risk drawing the United States into a war that is Congress’ right and duty to authorize or not.

A June 28 letter from the State Department to the House Foreign Affairs Committee acknowledged that the 2002 AUMF has not been interpreted “to date” to authorize war with Iran, but included an important caveat. Specifically, regarding the 2002 AUMF, the letter stated that it could be relied on for operations “as may be necessary to defend U.S. or partner forces engaged in … operations to establish a stable, democratic Iraq.”

Just Security’s Ryan Goodman and I unpacked that caveat as a reference to “the argument that both the 2001 and 2002 AUMFs, in authorizing “necessary and appropriate force,” provide authority to defend U.S. and partner forces engaged in the campaigns that those AUMFs authorize … when those forces come under immediate threat from a third party.” What does that mean in practice? As we wrote last week:

It means the Administration believes it could use force against any party — Iran, Syria, Russia, Hizbollah, other militias or armed groups — that threaten ongoing U.S. operations authorized by the 2001 or 2002 AUMFs, so long as those third parties present an imminent threat to U.S. or partner forces engaged in those operations. This could include, for example, U.S. military action against Iranian or proxy forces in Iraq or Syria, if the Iranian-aligned forces engaged in a direct attack on U.S. or partner forces in those theaters. And in theory, while the Administration has not made specific claims to this effect to date, such authority could extend to using force to defend U.S. or partner forces in other theaters where Iranian or proxy forces are present — such as potentially defending those US forces engaged against AQAP in Yemen if attacked (although this seems unlikely).

As we noted, this interpretation of existing AUMFs “is a potential slippery slope.” Or as Sen. Kaine warned, keeping the 2002 AUMF on the books “run[s] the risk of future abuse by the President, and help[s] keep our nation at permanent war.”

4. Congress Needs to Assert its Constitutional Role and Set Limits on Presidential Use of Force. Finally, repealing a force authorization that is unnecessary and susceptible to abuse would demonstrate that Congress is willing to exercise its authority under Article I of the Constitution to authorize and to limit war.

Congress passed the 2002 AUMF so that the president could use force for specific purposes. Now, Congress must show that it’s also capable of removing that authority when those purposes have long been addressed, and before it is relied on for operations well beyond those Congress intended to authorize. As Sen. Young aptly summed it up, repealing this “outdated” authority would be “sending a strong message that Congress is finally taking back its Article One responsibility.”

 

IMAGE: Barbara Lee, (D-CA) is flanked by House colleagues while speaking the ISIL threat on Capitol Hill, May 12, 2016 in Washington, DC. (Photo by Mark Wilson/Getty Images)

 

About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).