On Monday, President Joe Biden, like President Obama two terms before him, officially embraced repeal of the outdated 2002 Authorization for Use of Military Force with a Statement of Administration Policy (SAP) in support of H.R. 256, a bipartisan bill offered by Rep. Barbara Lee (D-CA) with 134 co-sponsors. This is a welcome, common sense step coming ahead of the expected House vote on the measure. 

I explained why it was imperative to pass an identical 2002 AUMF repeal bill two years ago, even before the Trump administration abused that force authorization as purported domestic legal authority to attack Iran’s most senior military official, Qassem Soleimani. In the wake of that attack, Congress passed extraordinarily rare bipartisan legislation pursuant to the War Powers Resolution clearly declaring that the 2002 AUMF provided no such authority. Trump vetoed that legislation, making it clear that the only durable solution to ensuring old force authorizations are not abused as legal cover for unforeseen conflicts is repealing them once they have served their intended purpose. 

In supporting H.R. 256, the White House statement explains that “the United States has no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis.” To the administration’s credit, the SAP then pivots to a much-needed — and much harder — discussion of AUMF reform more broadly, reaffirming the President’s commitment to “working with Congress to ensure that outdated authorizations for the use of military force are replaced….” This is a nod to the thorny issue of whether and how to repeal and replace the 2001 AUMF, which is relied on to this day for a range of U.S. military activities well beyond what was envisioned when it was enacted in response to the September 11, 2001 attacks. 

The three-sentence discussion that follows comes the closest we’ve seen to date to an explanation of the Biden administration’s position on what should replace the 2001 AUMF — and it is decidedly a mixed bag. (In previous press statements, Biden committed to working with Congress so that force authorizations “currently on the books are replaced with a narrow and specific framework that will ensure we can protect Americans from terrorist threats while ending the forever wars.”) Here is the passage from the H.R. 256 SAP in full:

Furthermore, the President is committed to working with the Congress to ensure that outdated authorizations for the use of military force are replaced with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats. 

In working with the Congress on repealing and replacing other existing authorizations of military force, the Administration seeks to ensure that the Congress has a clear and thorough understanding of the effect of any such action and of the threats facing U.S. forces, personnel, and interests around the world. As the Administration works with the Congress to reform AUMFs, it will be critical to maintain the clear authority to address threats to the United States’ national interests with appropriately decisive and effective military action. 

Let’s unpack these three sentences. First, the 2001 AUMF should be replaced with a “narrow and specific framework to ensure that we can continue to protect Americans from terrorist threats.” This is, of course, a familiar position. Essentially, it supports narrowing the currently over-broad interpretation of the 2001 AUMF by replacing it with something more “specific” (the administration could, of course, choose to interpret the 2001 AUMF more narrowly now, before Congress takes any action to repeal or replace it, but there’s little to suggest the Executive branch will choose to so limit itself unless pushed by Congress or the courts to do so). It also uses the words “continue to protect” — indicating the also familiar position that there should be no gap in authority to use force. But it is followed by the more nebulous formulation of “from terrorist threats.” This is where the statement starts to get murky. 

The question of who a narrowed and updated AUMF should authorize force against is one of the primary questions confronting those who are serious about AUMF reform. The category of “terrorist threats” is a broad and malleable one, and surely not what the Biden administration would propose Congress include in a new force authorization, especially if Biden is serious about “ending the forever wars.” Moreover, Biden (like those before him) has already shown he is willing to rely on unilateral authority (without congressional authorization) under Article II of the Constitution in emergency situations to deal with what his administration perceives to be an imminent threat of armed attack. So what we must really grapple with is a much more granular question: in 2021, are there specific terrorist groups against which the United States is already engaged in ongoing hostilities, and that present a significant enough threat of future armed attacks against the United States that a standing force authorization is necessary to permit waging war against them? 

The last paragraph of the SAP seems to hint at how the administration might tackle that million dollar question. “[T]the Administration seeks to ensure,” it begins, “that the Congress has a clear and thorough understanding of the effect of any such action and of the threats facing U.S. forces, personnel, and interests around the world.” 

Part of that sentence is unambiguously helpful: if the administration is serious about ensuring Congress has “a clear and thorough understanding” of the current threat landscape, that is to be lauded and should be followed by concrete steps to make that happen. The administration, including the Departments of State and Defense, should offer a series of in-depth briefings to the House and Senate Foreign Relations Committees (which hold the pen on AUMFs), alongside the armed services committees, on each of the groups the administration believes to be covered by the 2001 AUMF and whether a new force authorization needs to include them. If briefings are not offered, those committees should hold hearings, but regardless of the format, at least the following two sets of questions should be addressed. 

First, against whom does the administration believe force should be authorized? 

  • What specific groups, if any, are currently engaged in active hostilities against the United States?
  • How often have those groups attacked the United States in the last six months? In the last year? 
  • How robust is their capability to conduct significant external attacks? 
  • Are their goals primarily regional, such that hostile intent toward the United States is aimed at seeking to remove U.S. forces from their struggles against local governments? Or do they have a primary goal of attacking the United States?
  • How often has the United States needed to use force against each of those groups in the last six months? In the last year? 
  • What activities is the United States engaged in vis-a-vis those groups that could not be conducted under the President’s Art. II authority or statutory assistance and training authorities?
  • Are there tools short of force that are as effective – or perhaps more effective over the long term – in addressing the threat posed by these groups? 
  • To the extent force is necessary, are there armed forces other than the U.S. military that are better placed to address the threat (like the governments of Iraq, Afghanistan, or Somalia) with assistance from the United States and others as needed?

Second, while the SAP starts with the uncontroversial proposition that in crafting a new AUMF, Congress should understand the “threats facing U.S. forces” and “personnel,” it then wades into much fuzzier concepts. It uses the terms U.S. “interests around the world” and “national interests” in discussing the “clear authority” that is “critical to maintain.” This raises a separate set of questions:

  • What are the “interests” that need protecting through the use of military force that are separate from protecting U.S. territory, forces, or personnel? 
  • How serious are the threats to those “interests”?
  • How would the U.S. address those threats if there were not a standing authorization for military force? Threats to various U.S. interests around the globe are not new – but having a standing force authorization to wage war to protect against those amorphous types of threats would be. (The administration very likely does not expect Congress to enact a standing force authorization for any threats facing “US personnel and interests around the world” –  but there is a misconception that this is what an updated AUMF should do, and the SAP language does not help to dispel it.)

These all aim to get at the central question posed above: recognizing the President will continue to use Art. II authority when necessary to protect against an imminent threat of armed attack, does Congress actually need to enact a standing force authorization to wage war in 2021, and if so, against whom? This, in turn, stems from a fundamental legal and moral imperative — war should never be a discretionary choice, and we should never send our men and women in uniform into harm’s way unless absolutely necessary (particularly after decades of multiple deployments for those who volunteer to serve). 

In short, the last two decades should be seen as a diversion from the normal order, not the new normal. Republican and Democratic presidents have now avowed to end the Forever Wars. Making serious efforts to ensure Congress and the Executive branch share a common understanding of the threat landscape — with enough clear information to really sort through which threats require the ongoing use of military force and which do not — is a long overdue and necessary step to returning to normal order. If the administration is open to starting that process in earnest, that is a welcome development.

Finally, the White House statement on H.R. 256 ends with the following: “it will be critical to maintain the clear authority to address threats to the United States’ national interests with appropriately decisive and effective military action.” This reads as a bit of a muddle. Statutory force authorizations are generally not enacted to address threats to “national interests” – we must be clear that what they allow for is war, and war is only lawful when nations must respond in self-defense against armed attack (unless use of military force is otherwise authorized by the UN Security Council). There will be a range of threats to U.S. interests that cannot lawfully — and arguably should not as a policy matter — be dealt with through military action. Nor does the Executive branch typically understand its authority to use “decisive and effective military action” to be limited to what has been authorized by Congress — indeed, whether a use of force would be in the “national interests” has in recent decades been understood by the Executive to be the touchstone for whether doing so would be permissible under Art. II, even without congressional authorization.

What to make of this murkiness? Biden’s support for H.R. 256 is welcome, as is his continued embrace of broader AUMF reform. But the SAP also shows that repealing the 2002 AUMF is the easy part. Real engagement from the Biden administration is needed in order to get serious about the much harder and long overdue conversation with Congress and the American public on the badly outdated 2001 AUMF.   

Image: Drew Angerer/Getty