Authorizing Military Force: The Mistakes of 2001 and Remedies for the Future

The date was September 14th, 2001. Rep. Barbara Lee (D-CA) was delivering a one-and-a-half minute speech on the US House of Representatives floor in an attempt to persuade at least some of her colleagues to vote against authorizing the use of force in Afghanistan.  Quoting a member of the clergy to whom she had listened the previous day, Rep. Lee closed her speech by saying, “As we act, let us not become the evil that we deplore.” Subsequently, the resolution passed the House by a vote of 420-1, and the Senate 98-0. Over her single dissenting vote, the US entered armed conflict against an undefined enemy, with no end in sight.

Rep. Lee was correct. In 2001 she argued that the resolution was “a blank check [for the President] to attack an unspecified country, an unspecified enemy for an unspecified period of time”. Over the past several years, her reasoning has been proven correct again and again, as first President Bush then President Obama used the vague language of the 2001 AUMF to justify military action far outside the borders of Afghanistan and against groups that have only weak ties to the original targets. Today, the 2001 AUMF endures, justifying war against ISIS.

What is an AUMF?

The Authorization for Use of Military Force (AUMF) is a congressional resolution that delineates the boundaries within which the US can use military force. It limits the scope of the action by clearly defining a purpose for which force is to be used and the manner in which it is to be used.

Here, it is important to highlight a distinction between the AUMF and a declaration of war. Garrett Epps’ article in The Atlantic goes into greater depth on the historical and legal distinctions, but summarizes it particularly well by saying:

A “declaration of war” has always been a specific policy tool — a blunt one, and one that many presidents, and Congresses, have chosen not to use. “Authorizations,” by contrast, permit the two branches to agree on limited war aims. An authorization can lapse without a formal surrender; it can permit military action short of total war. It’s a tool that any government needs, and any rational constitution provides.

It should be noted that while some legal scholars question the constitutionality of the AUMF entirely, this post does not seek to explore that question.

The 2001 AUMF: “Vague and Broad”

In the wake of Sept. 11th, Congress passed an AUMF which was intended to give then-President Bush the power to exercise force against the perpetrators of the attacks in order to protect the US in the future. The body of the resolution is brief, merely 60 words:

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.

The resolution is controversial because of the duration of the authorization and the targets against whom the use of force is authorized. Duration is an important consideration when legally defining limited action because, intuitively, it is a characteristic that differentiates such action from war. While there are several legal distinctions between an AUMF and a declaration of war, Congress’ decision in 2001 to pass an AUMF rather than to declare war is indicative of a desire to avoid an endless commitment of US resources to an unclear enemy. So, the fact that the 2001 AUMF did not have a “sunset clause,” which would have specified a date upon which the authorization would expire, is striking. For the 2001 AUMF to lapse, Congress would have to pass a bill repealing it. Such bills have been proposed multiple times, to no avail.

The lack of a sunset clause has also made space for an expanded list of targets. This was made possible by reinterpreting the 2001 AUMF’s vague language, which authorizes force against

…those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons…

In 2001, that language referred to al Qaeda and the Taliban. However, the Obama administration interpreted the authorization to allow action against “al Qaeda, the Taliban, and forces associated with those two organizations within and outside Afghanistan.” As a result, the phrase “associated forces” now serves as the legal justification for the fight against ISIS.

Whether or not  ISIS qualifies as an associated force of Al Qaeda (AQ) is the source of significant legal controversy. Although both ISIS and AQ are Islamic extremist groups, however, there are important facts that contradict the “associated forces” argument. First, ISIS did not exist when the resolution was passed, and would not be formed for another ten years. Second, although ISIS has its origins in Al Qaeda (the group began as Al Qaeda in Iraq, abbreviated AQI), there was a fundamental split between the two organizations. Third, ISIS is engaged in on-and-off skirmishes with the Al Nursa Front, also known as AQ in Syria. Given these problems, using the 2001 AUMF to authorize action against ISIS is controversial.

In short, the vague language of the 2001 AUMF left the US Government legally unprepared to address the rapidly changing nature of international terrorism. As a result, US counter-terrorism activities today are part of a lengthy and ill-defined conflict that continues on uncertain legal grounds.

A New AUMF Proposal

In an effort to remedy this crisis of definition and ensure some congressional oversight of US counter-terrorism actions, several Members of Congress have put forth AUMF proposals that would repeal and replace the 2001 authorization. One of particular interest is the bipartisan joint resolution for the Authorization for the Use of Military Force against ISIS, al Qaeda, and the Taliban introduced by Sen. Tim Kaine (D-VA) and Sen. Jeff Flake (R-AZ).

Their bill addresses the three major faults of the 2001 AUMF: lack of a sunset clause, lack of clear authorization to fight ISIS and the potential for similar “successor groups” to be unintentionally authorized, and lack of congressional oversight.

Sunset

In contrast to the lack of a specified duration in the 2001 AUMF, Section 8 of the Flake-Kaine bill is dedicated to establishing a fixed duration for the resolution and outlines the procedure for reauthorization. The bill would expire after five years “in order to encourage periodic review”, with the potential for reauthorization by Congress.

Associated Forces Clarification

Addressing the crisis of definition, under Sec. 3(a)(2) of the new bill, there would be clear authorization for the president to use force against ISIS.

The “associated forces” phrase in the 2001 AUMF, previously used to justify the fight against ISIS,  is further clarified in Sec. 4. Associated forces are clearly defined in Sec. 4(a) and 4(b) as those who are “a part of, or substantially supports al-Qaeda, the Taliban, or the Islamic State of Iraq and Syria; and is engaged in hostilities against the United States, its Armed Forces, or its other personnel.”

Congressional Oversight

Regarding Congressional oversight, there are significant improvements to the current system, beginning in the “associated forces” section and detailed in Sec. 6. The President would be required to submit a list of initial associated forces to Congress, who can then choose to allow the list to stand or disapprove any targets on that list. Furthermore, any additional forces against whom the executive wishes to use force must be reported to Congress, where it can be disapproved by joint resolution. The aforementioned process for reporting and the space for congressional disapproval also applies to the geographic limitations of the military actions. This system would help address some of the legal questions regarding the use of AUMF as a tool of war, and provides much-needed accountability for the actions of the executive.

Conclusions

When it comes to complex legal questions, one hesitates to say that anything is perfect. However, the proposed Flake-Kaine bill certainly takes several steps in the right direction. This authorization provides for stricter congressional oversight and clearly defines the parties involved, allowing for truly limited military action in keeping with the intent of the AUMF mechanism.

Rep. Lee cautioned Congress of these deficiencies in the 2001 AUMF when she voted against it. She was right, and the nation has paid a great price for ignoring her. For the future, one wishes that the tragedy which drove Congress to action is confined to history and the lessons it learned are committed to memory.

Additional Reading:

• Full Text of the Flake-Kaine bill
• Summary of the Flake-Kaine Bill
• Additional notes and commentary on the Flake-Kaine Bill