An Incremental Step Toward Stopping Forever War?

If Congress wants to end the forever wars, it will have to start reclaiming the authority it has ceded under the 2001 Authorization for Use of Military Force (AUMF). It may be ready to start trying.

For nearly two decades, the AUMF, which Congress enacted in the wake of the September 11, 2001 terrorist attacks, has become the font of authority for most of the U.S. military’s counterterrorism activities, its scope expanding through a series of unilateral executive branch interpretations. While administrations of both parties bear the primary responsibility for stretching the AUMF beyond recognition, Congress also is complicit. Faced with partisan division and bipartisan reluctance to take on charged national security issues, Congress has been largely passive as the Executive branch has relied on the AUMF to enter into new conflicts, in new countries, and against new enemies, including groups that did not even exist on September 11, 2001.

The question is whether that can change. A bill introduced by a bipartisan group of lawmakers in the House of Representatives could offer some reason for hope. The “Limit on the Expansion of the Authorization for Use of Military Force Act,” H.R. 7500, seeks to prevent the Executive branch from relying on the AUMF as authorization to use force in even more countries – beyond those in which the United States already is engaged in “hostilities pursuant to [the AUMF]” as of the date the bill is enacted into law. Crucially, the bill is expressly not ratifying the Executive branch’s interpretation of where the AUMF currently applies. Rather, it explicitly states that it does not deem the use of force in any country in which the United States is “engaged in hostilities” to be either lawful or unlawful. Nor does it operate as an authorization to use military force in those countries. It simply seeks to limit further creep.

Key to its potential success, the bill is co-sponsored by a bipartisan group of legislators from across the country: Reps. Anthony G. Brown (D-Md.), Abigail Spanberger (D-Va.), Tom Cole (R-Okla.), Don Bacon (R-Neb.), Jimmy Panetta (D-Calif.), Francis Rooney (R-Fla.), Rob Woodall (R-Ga.), Jared Golden (D-Maine), Jason Crow (D-Colo.) and Rep. Ted Yoho (R-Fla).

Stopping further Executive branch expansion of the AUMF’s geographic reach is only step one in a must-needed effort to re-assert Congress’s role in determining when, whether, and to what extent the nation engages in one of the most monumental things a nation can do: wage war. It is a small step, and as explained below, modifications should be made through the deliberative process to ensure this bill would even achieve the goals its authors intend. Nevertheless, it is encouraging to see Congress stepping up on a bipartisan basis to set at least some, albeit modest, limits on the forever and ever-expanding wars waged under the AUMF.

The 2001 AUMF Needs Guardrails

There is no question that the AUMF needs guardrails. It authorizes the use of force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Congressional drafters rejected an open-ended purpose clause pushed by the George W. Bush administration, which would have authorized actions designed to prevent “any” future acts of international terrorism. It instead makes clear that any use of force pursuant to the AUMF is to be carried out as a means of preventing future acts by those responsible for the 9/11 attacks.

Notwithstanding this clear limitation built into the authorization, the 2001 AUMF has been interpreted and re-interpreted by the W. Bush, Obama, and Trump administrations as providing authority for the use of force in places far from Afghanistan, the place from which the 9/11 attacks had been launched, against groups that did not even exist in 2001, such as ISIS, and against groups that while in existence in 2001, had no connection to either al Qaeda or the Taliban at the time. Among the countries that the AUMF has been deemed to reach are Yemen, Syria, Libya, Somalia and Niger.

The Executive branch’s over-reliance on the 2001 AUMF to venture into new conflicts that have nothing to do with the September 11th attacks also upsets the constitutional balance. For good reason, the Constitution enshrined shared war powers – giving the power to “declare” war (and thus enter new conflicts), along with a host of other war-related powers – to the Congress, not the President.

Congress Is Beginning to Reassert its Authority

Slowly and cautiously, Congress is beginning to emerge. In the context of U.S. support for the Saudi-led coalition in a disastrous conflict in Yemen, and in the aftermath of the Trump administration’s strike on IRGC head Soleimani amid fears of escalation, Congress has begun shifting to a more assertive posture. Congress voted to end support for the Saudi-led coalition in Yemen in a bill vetoed by President Trump in April 2019. And in May 2020, President Trump vetoed a joint resolution passed by the Senate and the House that invoked the War Powers Resolution of 1973 to direct the termination of “hostilities” with Iran, absent subsequent congressional authorization or a legitimate assertion of self-defense.

The emergence of a bipartisan War Powers Caucus in the House and a recent hearing in the House Rules Committee on reform of the War Powers Resolution of 1973 indicate a slow but steady increase in Congress’s assertiveness with respect to its constitutional responsibilities.

The Bipartisan Bill to Limit Reliance on the 2001 AUMF to Wage War in New Countries

Now, a bipartisan group of Members is seeking to stop the Executive branch from using the 2001 AUMF as a blank check it can apply to ever-more theaters of conflict. The legislation has one goal: setting geographic limits on AUMF reliance. It makes clear that this and future administrations cannot claim that Congress – back in 2001 – authorized conflict in even more countries beyond those in which the United States already is engaged in “hostilities” on the date of enactment of the act. And to reiterate, the legislation does not endorse or authorize any of these current conflicts; it merely sets limits on future expansions.

This is a small, but important, first step toward restoring Constitutional balance on matters of war and peace. Just how meaningful a step this will prove to be is not yet clear.

As four of the bill’s co-authors have written, “[t]he American people are long overdue for a public debate on the use of military force,” and this bill represents an “incremental” step in that direction. As each of us has argued extensively, the Executive should come back to Congress – consistent with the clearly-delineated constitutional requirement that the legislative branch “declare” (or in modern times “authorize”) war – before embroiling the nation in new conflicts across the globe. To the extent that the bill would serve this goal, that is a good thing.

The Work Left to Do

But it is also important to recognize the bill’s limitations and how much work is left to do. As a start, the bill needs to explicitly list the countries where the Executive is currently using military force under the AUMF, thereby eliminating any ambiguity as to the expansions that it would block. Without establishing that baseline, the Executive branch could unilaterally define—in expansive ways–where the United States is currently engaged in “hostilities,” which is itself a loaded and contested term. The result would be Congress, once again, deferring to the Executive branch’s unilateral determination of the AUMF’s boundaries, even in the attempt to constrain the Executive’s ever-expanding assessment of where and against whom it can wage war.

The bill would also be much stronger if it: (1) repealed the 2002 AUMF, a long overdue measure for which there is bipartisan support, and without which the Executive may continue to claim that Congress has authorized new conflicts against new enemies (as with the Soleimani strike noted above); and (2) prohibited the Executive branch from relying on the AUMF to use force against new enemies that are inside countries where it is currently engaged in hostilities. Stopping geographic expansion is important, but expansion to new enemies – as seen with ISIS – is equally important for reining in forever war.

The bill does not do these things. It is, in our view, not nearly where we think we ought to end up. In addition, notwithstanding the rule of construction, it may be – wrongly and disingenuously – cited by some as evidence that Congress has ratified the current overbroad reach of the AUMF.  This of course would be incorrect.  But it is a risk that nonetheless needs to be considered.

And of course, while this bill aims to accomplish more modest ends, Congress ultimately needs to repeal the 2001 AUMF and assess whether there is a need to replace it—and if so, how to do so in a way that is tailored to the specific conflicts that require military engagement by the United States.  Merely limiting further expansion is, to reiterate, only a small first step.

That said, if we want to bring an end to forever, ever-expanding war, we need to start somewhere. Advocates, as well as some members of Congress, have been pressing for more sweeping steps for well over a decade now—without success. Limiting reliance on the 2001 AUMF for further geographic expansions of U.S. conflicts is certainly not the end of the road. But not only could it keep the problem from getting worse, it may be achievable, thereby allowing future energy to be focused on the broader reforms that are desperately needed.

Importantly, this is also the first truly bipartisan effort that we have seen that has the possibility of moving the ball forward, ever so slightly. And it does this not in a moment of crisis, but in a time of relative calm – when legislation like this is so often pushed to the back burner but also can have the most effect.

As the bill works its way through the legislative process, it could and should be amended to implement the relatively modest changes described above. A list of covered countries. Repeal of the 2002 AUMF. And limits to protect against use of the AUMF against an ever-expanding list of groups. And, as all of us have written extensively, the 2001 AUMF ultimately should be repealed and, if replaced, done so based on a showing of need and in ways that protect against the open-endedness and ever-morphing interpretation we have seen with the nearly two decade old 2001 AUMF. Any new war authority should include sunsets, among other key protections. The broken war powers framework embodied in the 1973 War Powers Resolution also should be reformed.

Congress has too long treated these steps as politically impossible. We hope that with the House’s bipartisan efforts, members will start to see the rebalancing of war powers for what it is – urgent, achievable, and vitally important.

IMAGE: The U.S. Capitol. 

 

About the Author(s)

Jennifer Daskal

Professor and Faculty Director of the Tech, Law, Security Program at American University Washington College of Law. Member of the editorial board of Just Security. Follow her on Twitter (@jendaskal).

Rita Siemion

International Legal Counsel at Human Rights First. Member of the editorial board of Just Security. Follow her on Twitter (@ritasiemion).

Tess Bridgeman

Co-Editor-in-Chief of 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. Follow her on Twitter (@bridgewriter).