20 Years On: Why Congress Should Repeal the Post 9/11 AUMFs
Three days after the September 11 attacks, the 107th Congress passed the Authorization for Use of Military Force (“2001 AUMF”). Section 2 of the 2001 AUMF authorized the President of the United States (“President”) 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 Stated by such nations, organizations or persons.”
This sixty-word broad authorization served as a blank check for the U.S. to conduct military operations in Afghanistan. The counterpart of the 2001 AUMF was the 2002 AUMF, which authorized military force against Iraq. While the initial focus of the 2002 AUMF was to address the threat posed by Saddam Hussein’s regime, the U.S. used it for the “dual purposes of helping to establish a stable, democratic Iraq and of addressing terrorist threats emanating from Iraq.” For example, President Obama used the 2002 AUMF to conduct the counter-ISIS military campaign in 2014. Similarly, in January 2020, after invoking both the Article II powers and the 2002 AUMF, President Trump authorized an air strike in Iraq, which killed Qassem Soleimani, the commander of the Quds Force. This article argues that Congress should repeal the post 9/11 AUMFs because they are ambiguous and serve as a perfect example of executive overreach.
II. AUMF: A Case of Executive Overreach
According to Congresswoman Barbara Lee, the sole dissenter against the 2001 AUMF, “the AUMFs have been used by the three successive Presidents to wage war well beyond the scope that Congress initially intended.” Curtis Bradley and Jack Goldsmith have discussed five main components in their analysis of how the AUMF is a case of executive overreach.
To begin, the 2001 AUMF only describes the enemies that are the objects of force instead of naming them. It does not specify which states and non-state actors fall within its ambit. Rather, it authorizes the use of all appropriate and necessary force against any nation, organization, or person that is connected to the September 11 attacks. The President makes this determination of enemy status at his own discretion. As a result, a broad interpretation of the AUMF allows the executive to add co-belligerents and associate forces to the list of enemy status without additional congressional authorization. This fades the “nexus” requirement and enables the executive to justify the use of force even against those who do not have a connection with the 9/11 attacks.
Next, the purpose of the AUMF is to prevent future acts of terrorism by “such” nations, organizations, or persons. However, without any specified enemy targets, the purpose of the AUMF has shifted to “prevent any future acts of terrorism by any organization.” In other words, the 2001 AUMF gives the Executive branch an unfettered war power to wage war against anyone, anywhere, at any time.
The AUMF also does not restrict the methods and resources that the President can employ. It only authorizes the President to “use all necessary and appropriate force”. Once again, the executive interpreted this phrase broadly and conducted non-lethal activities, such as surveillance and detention, without any explicit authorization.
Lastly, the AUMF does not provide any time limitation or a sunset provision stating when the conflict will end. Due to this open-endedness, the AUMF has allowed the United States to be in a perpetual state of war. Moreover, the 2001 AUMF does not provide any geographic restrictions on its application. The President is authorized to use force anywhere he encounters the enemy, including the United States. As a result, the President has invoked this power to fight terrorism in Afghanistan, Yemen, Somalia, Libya, Niger, Syria, etc.
III. From Youngstown to Hamdi
The presidential abuse of congressionally granted war authority for two decades demands nothing less than repealing the post 9/11 AUMFs. As stated above, the executive invoked the 2001 AUMF to conduct the NSA surveillance program as well as detain hundreds of prisoners in the detention facility in Guantanamo Bay. Both the programs, disguised in the name of national security, have resulted in the erosion of civil liberties and the rule of law.
Justice Jackson’s renowned concurrence in the Youngstown case explained the division of authority between Congress and the President in wartime. According to Justice Jackson, the Constitution gave Congress, not the President, the power to limit civil liberties during wartime and “courts must rigorously scrutinize congressional meaning before finding such authorization.” However, in the Hamdi case, Justice O’Connor’s plurality opinion and Justice Thomas’ dissent failed to apply Youngstown’s “rigorous scrutiny” requirement. In Hamdi, the issue was whether a congressional act authorized the detention of Hamdi, a U.S. citizen designated enemy combatant, within the meaning of the Non-Detention Act. The Court, after finding an implicit authorization in the AUMF, held that the executive had the authority to indefinitely detain Hamdi and that he could not challenge the factual basis of his detention before a federal court.
Both Justice O’Connor and Justice Thomas located Hamdi’s detention in Justice Jackson’s first category, i.e., “an exercise of authority with full congressional support.” However, merely seeking a congressional authorization does not make the executive’s action per se constitutional. The Court in Hamdi failed to “rigorously scrutinize” the 2001 AUMF. If Justice Jackson would have decided Hamdi, he would not have inferred a “congressional authorization for a denial of basic liberty from the ambiguous congressional language in the AUMF.”
All wars must eventually come to an end. On June 17, 2021, the House of Representatives passed Congresswoman Barbara Lee’s bill (H.R. 256) to repeal the 2002 AUMF. The White House supported the bill and issued a Statement of Administration Policy which noted: “the United States has no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis”. In other words, the 2002 AUMF “no longer serves any operational purpose because the deployments and operations carried out under it officially concluded in 2011.” With respect to the 2001 AUMF, the White House stated: “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.” However, a narrower framework would be futile if it does not limit the President’s power to interpret the AUMF broadly. To conclude, the post 9/11 AUMFs have been used far beyond their original purpose. Accordingly, the Congress should repeal the AUMFs to limit the President’s war powers and reclaim their Article I authority.
About the Author: Gursehaj Singh is a dual degree LL.B./J.D. candidate at Cornell Law School. He is originally from New Delhi, India. Prior to joining Cornell Law, he attended Jindal Global Law School, where he pursued a bachelor’s degree in business administration and law. He will be joining the New York office of White & Case LLP next year as a 2022 Summer Associate.