Editor’s note: This piece is part of a four-part series marking the 19th anniversary of the terrorist attacks on Sept. 11, 2001. All of the posts can be found here.
For nearly 20 years, successive U.S. administrations have adopted a costly war-based approach to national security and counterterrorism policy that has no clear endgame in sight. As several of us noted in the introductory piece for this series, this shortsighted strategy has”
Violated human rights; damaged the rule of law, international cooperation, and the United States’ reputation; set a dangerous precedent for other nations; fueled conflicts and massive human displacement; contributed to militarized and violent approaches to domestic policing; diverted limited resources from more effective approaches; and, most consequentially, destroyed hundreds of thousands of lives, primarily of civilian, Muslim, Black, and Brown people.
For all of these reasons, the next administration should act swiftly to set the nation on a more sustainable and rights-respecting course.
The American people have rightly grown skeptical of the war-centered approach of the last two decades, and the presidential candidates for both parties have promised to end America’s “endless wars.” Meanwhile, the people on the receiving end of American power—largely in Muslim, Brown, and Black countries—have been subjected to lethal force, injuries, greater internal strife, displacement, and other deep and long-term harms to their rights and security.
Continuing down the path of endless war is not only unpopular and harmful, it is also unnecessary. The United States has a robust array of diplomatic, law enforcement, peacebuilding, development, and other resources to mitigate actual security concerns abroad and at home. The United States need not, therefore, remain in this harmful, counterproductive, and costly state.
Moreover, with the growing recognition of other pressing global challenges—from the coming devastation of climate change to global pandemics, systemic racism, unprecedented forced displacement, mass inequality and authoritarianism—the next administration has a renewed opportunity to usher in a new era of a sustainable and rights-respecting approaches to national security policy, and shift national resources and attention away from endless war and toward the most pressing challenges of the future.
What follows are recommendations for setting the nation on this new course.
End All Operations Under the 2001 and 2002 Use of Force Authorizations
The first step to ending endless wars is to end all operations under the 2001 and 2002 Authorizations for Use of Military Force (AUMF), upon which successive administrations have relied far beyond Congress’s original purpose in enacting them. Continued reliance on the 2001 and 2002 AUMFs for military and other operations nearly two decades after their enactment has resulted in mission creep, relieved Congress of its responsibility to take hard votes regarding military engagements overseas, eroded public support, and siphoned limited resources from other national priorities.
The 2001 AUMF authorized military force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons.” Twenty years later, this AUMF has been used by the United States as the primary legal justification for military operations against a number of different groups in at least 19 different countries around the world, including against “associated forces” and assorted “successor entities” of those responsible for the 9/11 attacks. Prior administrations have also claimed that the 2001 AUMF and the 2002 AUMF (which authorized force against the Saddam Hussein regime in Iraq) provide authorization for using force against the Islamic State in Iraq and Syria (ISIS). The current administration has even gone so far as to attempt to claim that Iran and groups affiliated with the Iranian regime are covered by the 2002 AUMF, including by citing it as a legal basis for the targeted killing of Iranian general Qassem Soleimani in January 2020.
The next President can and should retire these authorities without Congressional action. The president should immediately cease relying on the 2002 AUMF—which does not serve as the primary domestic legal basis for any current military operations—and set an end date for operations conducted under the 2001 AUMF. That end date should provide for only a brief winddown period for operations currently underway pursuant to this authority. The administration should also publicly abandon prior executive branch legal interpretations that widened the scope of these authorities far beyond their original purpose.
However, to prevent future administrations from reviving these already decades-old authorities, the administration should urge Congress to rescind them, along with other outstanding war authorizations.
Shift Away from War-Based Detention, Trial, and Lethal Force
Ending endless war will require shifting away from reliance on the tools of war and, in particular, away from reliance on a war-based legal framework for use of force and military prosecution, and detention of terrorism suspects. When legitimately and lawfully used in extraordinary circumstances, wartime use of force and military detention and tribunals are aimed at balancing military necessity, humanity, and fundamental rights. Even so, wartime authorities can confer extraordinary powers that in peacetime are egregious human rights violations. The record of the last 20 years shows without doubt that use of lethal force as a first rather than last resort, accompanying harm to civilians, military trials, detention without charge or trial, and even torture, can become normalized. These practices violate fundamental human rights protections against extrajudicial killing, detention without charge or trial, and fair trial guarantees.
Adopt an Appropriately Tailored and Rights-Respecting Approach to Security
The United States has at its disposal a host of tools and resources available for addressing legitimate security concerns, including those posed by transnational armed groups. The next administration should prioritize the non-militarized tools in the government’s toolbox and use force only when it is lawful, as a last resort. The administration should rely on law enforcement; lawful intelligence-gathering; robust, accountable, and appropriately tailored foreign assistance; peacebuilding; and diplomatic capabilities for addressing long-term drivers of conflict and violence.
Moreover, the next administration must not outsource the United States’ own endless war approach to foreign partners. Rather than continuing to prioritize foreign military engagement and capacity building as the key tool to addressing security challenges, the administration should expand and increase its engagement with civil society and other nongovernmental actors, as well as its engagement with the non-security agencies of partner governments, to effectively support alleviation of conditions that contribute to organized violence—including political repression and lack of economic development. It must do so without perpetuating policies and programs that view local communities solely or primarily through a security lens, undermining their human rights and security.
Use Military Force Only as a Last Resort and with Authorization from Congress
Should extraordinary new security challenges arise, the next administration should consider the full array of tools available for addressing them before considering the use of military force. As an overarching principle, only if an administration exhausts all non-military means and determines that military force is lawful under international law (including meeting the requirements of necessity and proportionality), and strategically effective should it seek authorization from Congress in the form of a new, narrowly tailored AUMF.
The administration should also consider support for the use of force by partner security forces only as a last resort, when non-military means are insufficient, and when that military force is lawful, necessary, proportionate, and strategically effective. If it deems such operations necessary, it must secure appropriate congressional authorization. The administration must also be transparent about such operations, proactively and thoroughly vet partner forces for human rights compliance, and insist on formal and enforceable assurances from partners that they will comply with international human rights and humanitarian law, where each is applicable.
Insist on Essential Safeguards in Any Future AUMFs
If the next administration determines that the use of military force is necessary in the future, it must obtain prior authorization from Congress. In doing so, it should insist on the inclusion of essential safeguards in any new AUMF it seeks. Several safeguards have garnered bipartisan support and reflect an effective approach to drafting an AUMF that permits the United States to address legitimate and exceptional security concerns while applying the hard lessons learned from overbroad and harmful interpretations of the 2001 and 2002 AUMFs. These include:
- Clearly Defining the Opponent and Mission Objectives. Specifying the nation or group(s) against which force is authorized and the objectives or purpose—i.e., the mission—for which force is authorized ensures that congressional intent and the will of the American people cannot be overridden by subsequent, unintended interpretations and expansions of the use of force authority.
- Specifying the Geographic Scope of the Authorization. Explicitly limiting war authorities to declared theaters of actual armed conflict helps ensure compliance with U.S. obligations under the U.N. Charter and provides public clarity regarding with whom the nation is at war and where.
- Requiring Robust Transparency and Reporting. Regular and specific reporting requirements promote democratic accountability, ensure compliance with domestic and international law, and allow Congress to fulfill its oversight responsibilities by staying informed about conflict. Reporting requirements in an AUMF also provide a critical safeguard against endless war, and transparency that is crucial to public oversight and accountability.
- Requiring Compliance with International Law. Any new AUMF should contain an explicit statement that its authorities may only be exercised in compliance with U.S. international legal obligations. The United States is already bound by international law regardless of whether an explicit statement is included in an AUMF, but its inclusion will help restore domestic and global confidence in the United States as a nation that complies with the rule of law.
- Including a Supersession or Sole Source of Authority Provision. Given prior administrations’ assertions that the 2001 AUMF and 2002 Iraq AUMF authorized the use of force against ISIS—even though those authorizations were passed by Congress before ISIS even existed—if Congress does not repeal both of these AUMFs, any new AUMF should make clear it is the sole, superseding source of authority to use force against the nation or entity to which it applies. Without this clarifying language, a next administration could read the new authorization as expanding its administration’s war-making powers, rather than limiting them.
- Setting an Expiration Date. Sunset clauses, which have been included in nearly one-third of prior AUMFs as well as several post-9/11 national security statutes, set a date for Congress and the executive branch to reexamine the AUMF in light of current conditions and, if necessary, refine or narrow the legislation in response.
Support Efforts in Congress to Reform the War Powers Act
To secure lasting change for future generations, the administration should support structural reforms by Congress that protect against unilateral executive branch uses of force and restore the constitutional balance of war powers enshrined in the Constitution, including through reforming and modernizing the War Powers Act.
At a minimum, such reforms should:
- Recognize that the Constitution vests the decision to go to war solely in Congress, with only a narrow exception for the President to use force temporarily to repel a sudden attack if that force is necessary and there is no time to obtain advance authorization from Congress;
- Require the president to report any such defensive use of force without advance Congressional authorization to Congress within 48 hours of the actions taken with an explanation of the necessity to use force and a statement as to whether the hostilities are concluded or ongoing. Within seven days following the initial reporting deadline, the President should be required to submit a request for Congressional authorization if hostilities remain ongoing. If Congressional authorization is not provided within 20 days, there should be a mechanism for requiring the automatic termination of hostilities;
- Define “hostilities,” “imminent hostilities,” and other ambiguities in the existing law to ensure that the requirement for advance Congressional approval applies to all actions by U.S. forces that involve the use of deadly force;
- Require the President to provide ongoing public unclassified reports on current and possible engagement in hostilities whenever there is a material change, or no less frequently than every 30 days to keep Congress and the public fully and currently informed;
- Recognize that the President may not introduce U.S. forces into hostilities in any additional countries or against any additional nations, organized armed groups, or forces without advance Congressional authorization;
- Provide expedited Congressional procedures for consideration of resolutions to cease the use of U.S. forces in hostilities or situations where there is a serious risk of hostilities;
- Provide judicial review for non-compliance with resolutions to cease hostilities or automatic termination requirements, as well for credibly alleged violations of international humanitarian law or human rights law; and
- Prohibit funding for activities related to hostilities that are not authorized by Congress in advance.
The very notion of “endless war” serves as an indictment of 20 years of policy and strategy failures, and the devastating harms they have caused to human lives—abroad and at home—peace and security, and the rule of law. We need American leaders to move beyond promises to end the endless war paradigm by taking these concrete and necessary actions—they have clear and increasing public support to do so. A more secure and peaceful future for our collective human security, one that better allows us to face other pressing challenges, depends on their action.