As Tess Bridgeman recently noted in Just Security, the Biden administration issued a statement of administration policy (SAP) on June 14th endorsing H.R. 256, a resolution in the House of Representatives that would repeal the Authorization for Use of Military Force Against Iraq Resolution of 2002 (2002 AUMF). Readers may recall that the 2002 AUMF provided the domestic legal authority for the 2003 invasion of Iraq and was subsequently invoked by the Obama administration as a source of subsidiary authority for the military campaign against ISIS and by the Trump administration as a statutory basis for the strike on Iranian General Qassem Soleimani in 2020. Along with the 2001 AUMF, which authorizes the war in Afghanistan and undergirds many other U.S. counterterrorism operations, the 2002 AUMF is one of the principal domestic legal authorities for the United States’ past twenty years of post-9/11 conflict.
H.R. 256 has now been passed by the U.S. House of Representatives in a bipartisan vote of 268 to 161 and moves onto the Senate. As repeal of the 2002 AUMF appears increasingly likely, it is worth examining why such repeal is both more and less than it appears and placing the termination of this authorization in the broader context of the United States’ ongoing conflicts.
If the 2002 AUMF were repealed, it would be the first time in 50 years that a use of force authorization had been terminated by Congress. Appropriately enough, the last time Congress repealed such an authorization it was the Gulf of Tonkin Resolution, the principal statutory authority for the Vietnam War. For this reason alone, the Biden administration’s position (and the bipartisan House vote) is historically and symbolically significant.
The SAP also signals at least a partial departure from the Trump administration’s approach to war powers. For all of former President Trump’s talk of “ending endless wars,” his administration’s position with respect to reform of use of force authorizations amounted to “it ain’t broke, don’t fix it.” In a 2017 joint letter to Senate Majority Leader, Rex Tillerson, then Trump’s Secretary of State and, James Mattis, his Secretary of Defense, explained that “[t]he Administration … opposes the adoption of any measure to revise or repeal the 2001 AUMF and 2002 AUMF.” In 2020, the Trump White House issued its own SAP that “strongly oppose[d]” legislation that would have repealed the 2002 AUMF.
However, as Bridgeman notes, the Biden SAP is also a reversion to a position taken earlier by the Obama administration. On July 25, 2014, then National Security Adviser Susan Rice wrote to the Speaker of the House stating that “a timely action for Congress to take is the repeal of the outdated 2002 Authorization for the Use of Military Force in Iraq…the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal.”
But although the Obama administration took this position on its own initiative, it quietly undermined it soon thereafter. In response to ISIS’s rampage across northern Iraq in the late summer of 2014, the United States initiated a counter-ISIS military campaign. In doing so, the Obama administration relied in part on the 2002 AUMF as a source of domestic legal authority.
Yet, the reason for the Biden administration’s position, and that the political stars appear to be aligning in Congress for repeal, is also the reason that repeal of the 2002 AUMF is less meaningful for matters of war and peace. As General Mark Milley, Chairman of the Joint Chiefs of Staff, recently testified before the House Armed Services Committee (here at 3:10:45), no current U.S. military operations depend on the 2002 AUMF and thus its repeal would not affect the United States ongoing wars. Repeal of the 2002 AUMF costs the Biden administration little or nothing.
Where the rubber meets the road on AUMF reform is the 2001 AUMF, the principal statutory authority for U.S. military operations in the war on terror. As General Milley explained, the “2001 AUMF is the one we need to hang on to…it is the critical one for us to continue operations.” Regarding reform of the 2001 AUMF, the Biden administration’s position is mushier, committing to working with Congress not to repeal the 2001 AUMF but to “ensure that outdated authorizations for the use of military force are replaced with a narrow and specific framework.”
In doing so, the Biden administration has retreated from the aspirations of the Obama administration. In his May 23, 2013 speech at the National Defense University, President Obama said, “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” As he explained, “this war, like all wars, must end.” In 2015, President Obama repeated those intentions, “Although my proposed AUMF [against ISIS] does not address the 2001 AUMF, I remain committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF.” Although President Biden has made rhetorical gestures at ending “forever wars” in connection with the U.S. withdrawal from Afghanistan, the Biden administration’s SAP and Biden White House statements on AUMF reform show an intent to continue – not to end – current conflicts, and to do so on an updated though more carefully tailored legal basis.
Why Reforming the 2001 AUMF is Hard But Necessary
From the perspective of the Executive Branch, reforming, and even more so repealing, the 2001 AUMF would be disruptive to ongoing U.S. military operations spanning at least three continents. In describing operations that depended on the 2001 AUMF in August 2017, then Deputy Secretary of State John Sullivan wrote to Congress:
The 2001 AUMF provides statutory authority for ongoing U.S. military operations against the following individuals and groups: al-Qa’ida; the Taliban; certain other terrorist or insurgent groups affiliated with al-Qa’ida or the Taliban in Afghanistan; al-Qa’ida in the Arabian Peninsula; al-Shabaab; individuals in Libya who are part of al-Qa’ida; al-Qa’ida in Syria; and ISIS.
The 2001 AUMF also provides statutory authority for the United States to detain those persons who were part of, or substantially supported, Taliban or al-Qa’ida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. During the past decade, the United States has detained individuals pursuant to the authority of the 2001 AUMF in Afghanistan, in Iraq, temporarily at sea, and at the Guantanamo Bay detention facility. The United States continues to detain 41 individuals at Guantanamo Bay.
If the above tally of military operations and enemies remains accurate, reform of the 2001 AUMF would impact U.S. policy toward at least Afghanistan, Yemen, Somalia, Libya, Iraq, and Syria, not to mention the seemingly intractable matter of detention at Guantanamo Bay (which still holds 40 men). In this context, the Trump administration’s “it ain’t broke, don’t fix it,” position on AUMF reform is perhaps more understandable.
Yet this is also a reason that reforming the 2001 AUMF is necessary. To state the obvious, an armed conflict that has steadily expanded over three continents and is now two decades old, is an aberration in the history of the United States. Twenty years after the 9/11 attacks it is time to reevaluate when and how military force is a necessary part of counterterrorism policy. The malleability of the 2001 AUMF has contributed to the war on terror metastasizing and, as a consequence, any reevaluation of U.S. counterterrorism policies – which the Biden administration says it wants – must include a rigorous assessment of whether its legal underpinnings should be reformed or repealed.
In addition, I want to emphasize two perhaps less appreciated aspects of the 2001 AUMF related to its broad, indeterminate, and ever-expanding scope, both of which militate for legislative change. First, the full span of the war on terror is unknown to the U.S. public, in part, because the complete list of groups that the United States is at war with is classified. Such secrecy strains the notion that the war on terror enjoys democratic legitimacy. Second and relatedly, under the 2001 AUMF, the executive branch, not Congress, determines which groups the United States is at war with. Such a state of affairs is hard to square with the Declare War Clause of the Constitution which empowers Congress, not the President, to determine against whom the country will use force. Both features of the 2001 AUMF facilitate the initiation and expansion of armed conflict.
Classified Enemies and Secret Wars: A Checkered History of Transparency
The U.S. public doesn’t know the full extent of the war on terror, because the U.S. public doesn’t even know who the United States is at war with. The full list of groups and individuals covered by the 2001 AUMF is currently secret. In its April 2021 Report on the Legal and Policy Frameworks for the United States’ Use of Military Force and Related National Security Operations, the Biden Administration states that information regarding the application of the 2001 AUMF to specific groups is in a classified annex. Unfortunately, such secrecy regarding whom the United States is waging war against has been the rule rather than the exception during the twenty years of the war on terror.
The problem of waging war against unknown enemies first captured public attention during a 2013 public hearing before the Senate Armed Services Committee. Early in the hearing it became apparent that Chairman Carl Levin (D-MI) and likely other Senators didn’t know whom the United States was using force against under the 2001 AUMF. At the request of Chairman Levin, DoD later provided his staff a classified paper on al Qa’ida, the Taliban, and the unnamed “associated forces” that the Obama administration believed the AUMF authorized it to fight.
Stephen Preston, the then General Counsel for the Department of Defense subsequently provided additional details publicly regarding the groups and individuals to whom the 2001 AUMF applied both during a 2014 hearing before the Senate Foreign Relations Committee and in his 2015 speech before the American Society for International Law. As Preston explained in his speech, the United States was then using force under the 2001 AUMF against:
al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qa’ida in Somalia and Libya. In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria. We have also resumed such operations against the group we fought in Iraq when it was known as al-Qa’ida in Iraq, which is now known as ISIL.
Preston reassured the audience that “[t]here are no other groups – other than those publicly identified, as I have just described – against which the U.S. military is currently taking direct action under the authority of the 2001 AUMF.”
In late 2016, the Obama administration publicly released a complete list of which groups the United States was using force against under the 2001 AUMF. Significantly, this 2016 list also now included al Shabaab. The Obama administration’s AUMF inventory noted that it was using force under the 2001 AUMF “solely” against these individuals and groups.
In August 2017, the Trump administration included, as noted above, an identical list of groups in Deputy Secretary of State Sullivan’s unclassified letter to Chairman Royce. Intriguingly, the word “solely” was not then and would not afterwards be used by the Trump administration’s public reports describing which groups were covered by the 2001 AUMF.
By the next spring the list of groups covered by the 2001 AUMF was again secret. In an April 2018 report provided to Congress consistent with Section 1264 of the National Defense Authorization Act (NDAA) for Fiscal Year 2018, the Trump Administration explained that the report’s classified annex contained information about the application of the 2001 AUMF to particular groups and individuals. Although the Trump administration later publicly acknowledged using force under the 2001 AUMF against ISIS in Niger in 2017 and adding AQIM to the 2001 AUMF roster, that administration’s public reporting continued to indicate that “specific information about the application of the 2001 AUMF to particular groups” was classified. And at least as of April 2021, this secrecy persists into the Biden administration through its own classification.
In sum, for most of the past two decades the complete inventory of enemies U.S. forces are fighting or authorized to fight under the 2001 AUMF has been a secret. Although the U.S. public may know some of the groups with whom the United States is at war, based on the Biden White House’s April report, the full list appears to be classified.
Who Decides with Whom the United States is at War?
The 2001 AUMF provides
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (emphasis added)
While this authorization is relatively clear on its face (it has long been recognized that it describes al-Qaida and the Taliban even if it does not state their names explicitly), the executive branch has long treated the AUMF as in effect a delegation to the President of the power to decide who the United States will go to war against.
The 2013 hearing before the Senate Armed Services Committee also shone a little light on the process by which the executive branch exercises the discretion under the 2001 AUMF and decides to use force against particular groups. Under questioning from Senator Jack Reed (D-RI), the DoD witnesses indicated that though the President would ultimately decide whether to take military action, the scope of which groups could be targeted under the 2001 AUMF “would be [an executive branch] lawyer’s judgment.” When asked by Senator Reed whether Congress should have a role in deciding which groups were covered by the 2001 AUMF, Assistant Secretary Sheehan responded that such decisions were better left to the executive branch.
The Obama administration elaborated on this explanation slightly at the end of 2016. In a report issued during its final months, the administration stated:
A determination was made at the most senior levels of the U.S. Government that each of the groups named above is covered by the 2001 AUMF only after a careful and lengthy evaluation of the intelligence concerning each group’s organization, links with al-Qa’ida or the Taliban, and participation in al-Qa’ida or the Taliban’s ongoing hostilities against the United States or its coalition partners.
The opaque reference to “most senior levels of the U.S. Government,” an unidentified group of officials, provides little comfort in the process by which the United States decides to go to war against specific groups. This is particularly true because under the Declare War Clause as well as Congress’s other enumerated war powers, the Constitution contemplates that the people’s elected representatives would make such decisions and the question at hand would be subject to public debate and scrutiny.
The issue of who within the U.S. government decides where and with whom the United States is at war with is not merely a question of separation of powers or good governance, or democratic legitimacy of direct relevance to a domestic audience. It is a matter of war and peace with stark consequences for those overseas on the receiving end of U.S. military might, including large numbers of civilians. Congress’s past abdication of its responsibilities in this area are understandable, but hardly acceptable. Accordingly, after twenty years of the war on terror, it is heartening that Congress shows signs of reclaiming its constitutional prerogatives and perhaps fulfilling its responsibility for determining whether, where, and against whom the United States should be at war.
Conclusion: Congress Must Take the Initiative
Although the immediate practical implications of repealing the 2002 AUMF are minimal, the Biden administration’s position on the issue and the process by which it arrived at it are instructive for those advocating reform of the AUMFs and war powers more generally. In contrast to the Trump administration, the Biden White House is amenable to (at least some) AUMF reform if pushed by Congress. Yet unlike President Obama, the current White House does not appear to have an affirmative agenda for reforming AUMFs. Given the multitude of urgent foreign and domestic problems competing for the time of President Biden and his team, it is hardly surprising that counterterrorism reform might be on the backburner. In addition to a shortage of bandwidth, the Biden team may not be proactively pushing for reform because they wish to preserve the flexibility afforded to the executive branch under the current AUMF and war powers status quo. In either case this means that if, after twenty years of the war on terror, there is to be significant reform of outdated legal authorities, Congress must continue to take the initiative.