The U.S. hasn’t had troops in Afghanistan for four years, yet nearly a quarter century after Al Qaeda’s September 11 sneak attack on America, Congress’ authorization for the president to conduct a retaliatory global war on terror remains in full force.
It has outlasted four presidential administrations as well as Osama bin Laden and his successor, Ayman al-Zawahiri. It has been used to justify U.S. military action in more than 20 different countries, from Kenya to Kosovo and Pakistan to the Philippines.
When a first-term President Trump suggested potential strikes against Iran, it was the 2001 Authorization for the Use of Military Force — short-handed to AUMF in D.C.-speak — that his aides suggested gave him legal authority to attack without going to Congress for new approval.
And when President Biden last year ordered bombs dropped on targets in Iraq, he also cited the 2001 AUMF.
To backers, the AUMF is evidence that the U.S. learned the lessons of 9/11, allowing a president to nip emerging dangers in the bud. To opponents, it’s a symptom of the aggressive war footing America has suffered for the last 24 years, with all the collateral damage to civil liberties — not to mention Uncle Sam’s wallet.
Yet it’s proved tough to kill.
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Rep. Greg Meeks, the top Democrat on the House Foreign Affairs Committee, tried in the last Congress. He wrote legislation repealing and replacing the 2001 AUMF with a more limited grant of terrorism-fighting powers, focused only on pre-approved “terrorist hotspots.”
His proposal failed to gain traction.
Carlissa Carson, a law professor at Samford University and former Army intelligence officer and judge advocate in the Army Reserve, said the sheer breadth of the AUMF, or at least what it’s come to be, is one reason it’s had such staying power.
“The 2001 AUMF has no expiration date and no geographical limitations. Additionally, phrases such as ‘associated forces’ have allowed presidents from Bush to Biden to stretch the 2001 AUMF beyond its original purpose,” she told The Washington Times in an email. “It was enacted as a direct response to the 9/11 attacks, yet it’s been used to combat forces such as ISIL that did not exist in 2001.”
AUMFs are a creation of Congress, which acted after seeing presidents repeatedly commit troops to foreign entanglements without seeking lawmakers’ approval. Under the War Powers Resolution, enacted in 1973, a president who wants to keep troops engaged longer than a few months must seek an AUMF.
Congress granted them for both the 1991 war to boost Iraqi troops from Kuwait, and the 2003 war that ousted Saddam Hussein.
Indeed, both of those also remain on the books, although the U.S. House has teed up a debate on their repeal this month as part of a broader defense policy bill.
Congress passed the 2001 AUMF a week after the 9/11 attacks. It was approved 98-0 in the Senate and 420-1 in the House.
Former Democratic Rep. Barbara Lee, now the mayor of Oakland, California, was the lone dissenter.
“September 11 changed the world. Our deepest fears now haunt us. Yet I am convinced military action will not prevent further acts of terrorism against the United States,” she said at the time.
The language authorized presidents to use force “to prevent any future acts of international terrorism against the United States” by nations, organizations or persons deemed responsible for 9/11.
Two decades later, in 2021, the Costs of War project at Brown University calculated that the AUMF had been cited as justification for military operations in 22 countries.
That included Afghanistan, where the Taliban was providing a home to al Qaeda at the time. But it also justified direct attacks on targets in Djibouti, Iraq, Libya, Pakistan, Somalia, Syria and Yemen; support for other countries’ operations in Cameroon, Chad, Eritrea, Ethiopia, Georgia, Kenya, Kosovo, Jordan, Lebanon, Niger, Nigeria the Philippines and Turkey; and ongoing detention of terrorism suspects in Cuba.
President Obama used the AUMF to deploy troops to battle “associates” of al Qaeda. In practice, that meant groups like the Islamic State, or ISIS, which didn’t even exist in 2001.
Legal questions still surround any time a president takes military action.
When the U.S. Navy sank a boat that the Trump administration said had left Venezuela with a load of drugs and a crew of 11, Democrats demanded to know the legal justification.
Stephanie Savell, the Brown University professor who oversees the Cost of War project, wondered if Mr. Trump would cite the 2001 AUMF for that.
“That information has yet to come to light, and it’s possible his administration will call on that authority to retroactively report actions to Congress, down the line,” she told The Times in an email.
Ms. Carson said another issue for repeal is the nature of the terror threat itself, which has evolved faster than Congress can legislate.
She said that without the AUMF, presidents could cite their inherent commander-in-chief powers under the Constitution, but that’s a gray area because Congress also has war powers.
“The overlapping grant of war powers has baffled both branches for decades. Presidents are therefore more comfortable using an authorization,” she said.
