In the immediate aftermath of the terrorist attacks of 2001, Congress passed an Authorization for the Use of Military Force (AUMF), giving the president legislative grounds for using force against terrorists. Sixteen years later, the AUMF remains in force but policymakers are debating whether to repeal, replace, or expand its authorities. The debate is illustrative of how poorly our elected officials conceive of the problem of jihadist terrorism—and it demonstrates why they should leave the 2001 AUMF well enough alone. Sometimes doing nothing is the best course of action.
Are Declarations of War Necessary?
Back in September, Senator Rand Paul unsuccessfully tried to get his Senate colleagues to repeal of the AUMFs that currently govern U.S. military operations in Iraq and Afghanistan. Paul spoke for a tradition of libertarian thought in which military operations are only legal if they are backed by a full Congressional Declaration of War.
“I rise today to oppose unauthorized, undeclared, and unconstitutional war,” he said, referring to the war in Afghanistan and counterterrorism operations in Yemen, Iraq, and elsewhere. “What we have today is basically unlimited war—war anywhere, anytime, any place on the globe.” He framed the debate over the AUMFs as one of simple constitutionalism: “Today’s vote is simply a vote on whether we will obey the Constitution.”
Paul and his libertarian coterie build their case on a myth that in the halcyon 19th-century days of Congressional governance, legislators jealously guarded the power to declare war and the president did not order military operations without their authorization. According to this myth, Congress fell from grace in 1950 when it allowed Truman to take the nation to war in Korea without a formal Declaration of War (or even an AUMF).
The libertarian myth is ahistorical and groundless. Presidents have ordered literally hundreds of military operations around the world throughout history “in situations of military conflict or potential conflict or for other than normal peacetime purposes,” without a formal Declaration of War, according to the Congressional Research Service.
Most of these operations were short landings by U.S. Marines to secure or evacuate American citizens or property in unstable regions. Others were larger and longer deployments to participate in peacekeeping or peacebuilding operations. The line between the types of operations is blurry, and it is not always clear beforehand what side of the line an operation will land on.
It is unrealistic to expect Congress to declare war for every deployment of U.S. military force for the simple reason that in most cases U.S. forces are not deploying to fight a full-scale war. Senator Paul and his libertarian followers have a singularly myopic understanding of the spectrum of conflict. They seem to believe that there is a binary choice: complete peace or total war, in which case Congress either declares war or prohibits all military operations. This has no connection to reality.
What are AUMFs, and are They Legal?
In response to this situation of ambiguity, Congress innovated a halfway measure. In situations short of conventional, full-scale war, Congress sometimes passes an AUMF as a way of providing Congressional input and accountability without resorting to a formal Declaration. AUMFs differ from Declarations of War in that the former is little more than a Congressional statement of support while the latter triggers a range of other legal authorities and responsibilities for the executive branch, according to the Congressional Research Service.
Again, the libertarians tell a myth that AUMFs are a modern innovation of the imperial presidency that has effectively made formal Declarations of War anachronistic. Again, this is false. Congress passed its first AUMF in 1798 for the “quasi-war” against France, and presidents have relied on them many times since.
Paul argues against the evidence of the Founders’ own practice. If President John Adams and the first generation of U.S. Congressmen and Senators—who were alive during the Constitutional Convention and the ratification debates of 1788—felt comfortable with an AUMF, then perhaps it is Rand Paul, not the Founders, who misunderstands the war powers of the Constitution. AUMFs are perfectly legitimate tools for governing military operations.
The problem with the libertarian position is that, if Paul is right, the United States has essentially never abided by the Constitution. That may be what Paul believes, but if so, it is an example of intellectual consistency purchased at the price of relevance.
Another way of looking at it is that the accumulated weight of past practice and precedent has come to define how we should understand the Constitution’s war powers. The President has ordered military action under some AUMFs, a handful of Declarations of War, and most often under no form of Congressional authorization at all for the entire history of the United States with almost no pushback or opposition from Congress or the Courts until recently. The weight of precedent puts an enormous burden on those who argue that Congress should play a bigger role than it has.
Should We Repeal or Replace the 2001 AUMF?
Setting aside libertarians’ quixotic crusade against AUMFs and sentimental attachment for formal Declarations of War, there is still a valid policy question about the 2001 AUMF and the grounds for U.S. counterterrorism operations today. Paul’s motion back in September failed, but some on Capitol Hill have renewed their interest in the issue after four U.S. servicemen died in Niger. Some Congressmen were apparently unaware why the U.S. had deployed troops to Africa or under what authority the president had done so, and now are concerned that the 2001 AUMF is too open-ended and unrestricted.
The 2001 AUMF is both brief and broad. The key passage makes clear Congress’ intent:
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.
President Barack Obama was among the first to call for the AUMF’s repeal. Back in 2013, he called on Congress “to refine, and ultimately repeal, the AUMF’s mandate.” He tried to differentiate continuing counterterrorism operations from the wartime AUMFs that had, until that point, authorized them: “Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end.”
Obama is right that all wars must end. But the United States cannot simply declare when that end will come. It cannot decide to stop fighting wars if the enemy persists in attacking. The global war against al-Qaida is still ongoing, five years after Obama’s speech. The war against the Taliban in South Asia nearly ended in a Taliban victory in 2015 until Obama reversed course and halted the withdrawal of U.S. troops. The war against jihadists in Syria and Iraq resumed in 2014 after the rise of the Islamic State compelled Obama to reverse himself again and send U.S. troops back to the country he had pulled them out of in 2011.
Obama was transparently motivated by a desire to claim as his legacy the end of the “War on Terror” and his victory against al-Qaida. His Secretary of Defense falsely claimed in 2011 that the United States was “within reach of strategically defeating al-Qaeda.” The same month Obama said (again falsely) that the “tide of war is receding,” in announcing the withdrawal of troops from Afghanistan.
Leon Trotsky is supposed to have said, “You may not be interested in war, but war may be interested in you.” The aphorism could serve as a fitting epitaph to the Obama presidency. Obama’s over-eagerness to end the wars, rather than win them, did more harm than good and prolonged the conflicts he hoped to end. The right way to avoid endless war is to adopt a strategy designed to win them, something Obama singularly failed to do. In any case, the time to repeal the AUMF is not when jihadists still control large swaths of territory in the Middle East and South Asia.
Does the 2001 AUMF Invite Abuse?
Part of Obama’s concern was that the 2001 AUMF might invite mission creep and become an excuse for ever-increasing presidential power. “Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” he said.
Obama’s fear of endless war is not groundless. “Any long war always entails great hazards to liberty in a democracy … [War] must invariably and immeasurably increase the powers of civil government,” Alexis de Tocqueville warned. “All those who seek to destroy the freedom of the democratic nations must know that war is the surest and the shortest means to accomplish this.”
However, considering the track record of recent history, there is no evidence yet of such abuse, and thus no pressing need to repeal the AUMF. The U.S. has, so far, managed to avoid using the AUMF as a pretext for launching needless wars. The AUMF was passed in the immediate aftermath of the 2001 attacks and was intended to authorize military action against those who “planned, authorized, committed, or aided” the attacks, and those who “harbored” the attackers.
Under that umbrella, the U.S. has engaged in a clearly justified war in Afghanistan. It also has conducted training operations to help partners and allies improve their counterterrorism capabilities, according to yet another Congressional Research Service report.
The AUMF has clearly been stretched in one way: the U.S. applies it not only against those who planned, authorized, committed, aided, or harbored the 9/11 attackers, but also against “affiliates,” fellow-travelers, and ideological sympathizers. The U.S. is at war with militant jihadists of any stripe, in any organization, of any affiliation, everywhere in the world, regardless whether they had a direct tie to 9/11 or not.
That goes beyond the text of the 2001 AUMF, but the creative interpretation seems justified. Jihadists share the same ideology as the 9/11 attackers, openly declare their intent to attack the U.S. and its allies around the world, and have repeatedly carried out acts of terrorism in the years since 2001. In the fluid fever swamps of jihadism, it isn’t always clear what organization, if any, a given jihadist formally belongs to. To refrain from targeting them because we don’t know which club of murderers they most prefer to call their own—especially when they can change labels on a whim—seems to violate the spirit of the AUMF in favor of its letter. If any revision to the AUMF is justified, it would be to expand the authorities to add “affiliates” to the list of those the U.S. is at war with. Otherwise, it’s best left alone.
Obama’s record itself illustrates the dangers of trying to repeal the AUMF. Just over a year and a half after calling for its repeal, Obama did an about-face and asked Congress for a new AUMF, rather than a repeal of the old one—this one to authorize combat against the Islamic State, something lawmakers continue to debate. The exercise seems pointless. The 2001 AUMF has served as an adequate basis for the United States’ long war against jihadists in Afghanistan and globally, and it can continue to do so for as long as needed. A bigger question is how long it will take the United States to win the wars and whether its policymakers will ever come to grips with the nature of the war and the essential conditions of victory.
Paul D. Miller teaches public policy at The University of Texas at Austin. He is a contributing editor of Providence, a research fellow with the Ethics and Religious Liberty Commission, and a member of the Advisory Board of the Philos Project. He previously served as Director for Afghanistan and Pakistan on the National Security Council staff.
Photo Credit: U.S. Army Sgt. Robert Newman, Bravo Company, 1st Battalion, 4th Infantry Regiment, U.S. Army Europe, watches the sunrise after a dismounted patrol mission near Forward Operating Base Baylough, Zabul, Afghanistan, March 19, 2009. U.S. Army photo by Staff Sgt. Adam Mancini/Released.