Repeal of Iraq War Authorization While Leaving Post-9/11 Authorization Will Send Mixed Signal

Posted in: Constitutional Law

The Senate recently advanced a measure repealing two Authorizations for Use of Military Force (AUMFs) against Iraq. The House of Representatives passed a similar measure in 2021, but when the last Congress expired, that bill died. For the repeal to become effective, it must pass in the current Congress and then gain the signature of President Biden, who supports the repeal. Because the repeal measure has at least some bipartisan support, passage now seems likely.

The two AUMFs were adopted in 1991 and 2002. They respectively heralded (what came to be known after the fact as) the first and second Iraq wars, spearheaded by the first and second Presidents George Bush (George H.W. and George W., respectively). Those wars exacted enormous costs in dollars and especially lives, including the lives of hundreds of thousands of Iraqi civilians.

It is impossible to know how the last three decades would have unfolded had the U.S. not pursued the Iraq policy it did. Maybe things would have gone even more badly. Perhaps Saddam Hussein would have eventually developed and used the weapons of mass destruction that the second Bush administration misled the world into believing he already had as justification for the 2003 invasion. But things could have gone better. Perhaps the regime, oppressive as it was, would have continued to serve as a strategic counterweight to Iran. It does seem highly unlikely that ISIS—which originated as Al Q’aeda in Mesopotamia—would have come into existence in almost any alternative universe in which the U.S. did not invade Iraq in 2003. What we do know is that the actual policy had disastrous consequences.

Repeal of the AUMFs thus can be seen partly as a belated and veiled acknowledgment of the terrible mistakes made over two decades ago. In addition, and more expressly, repeal would reassert the principle of separation of powers. Co-sponsors Democrat Tim Kaine of Virginia and Republican Todd Young of Indiana have made that point expressly, noting that just as Congress has the constitutional responsibility to decide whether to declare war—or equivalently, to pass a resolution authorizing the use of military force—so it should declare the end of war, and thus the end of the President’s extraordinary powers, when facts on the ground do not justify a state of war. The U.S. still has approximately 2,500 troops in Iraq, but that’s hardly an indication of an ongoing war. After all, the U.S. has more than ten times that many troops stationed in Germany, but no one would say that their deployment reflects the continuation of Congress’s declaration of war in 1941.

The AUMF That Remains

Yet even as Congress prepares to repeal the Iraq-related AUMFs, it intends to leave on the books the AUMF it adopted in 2001 in the aftermath of the 9/11 attacks. As Republican Senator Rand Paul of Kentucky observed in offering an amendment to expand beyond repeal of the Iraq AUMFs, by declaring circumstances sufficiently changed to justify repeal of the Iraq-related AUMFs but not repealing the post-9/11 AUMF, Congress will be impliedly signaling its intention to continue to give President Biden and, absent future repeal, his successors, carte blanche to conduct military actions throughout the world. In overwhelmingly rejecting Senator Paul’s proposed amendment, the Senate seemed to endorse that continuing grant of extraordinary power.

Readers might wonder how the post-9/11 AUMF empowers wide-ranging military action. After all, its wording suggests a much narrower focus. The operative provision authorizes the 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 States by such nations, organizations or persons.

In the decade between 9/11 and the killing of Osama bin Laden by Navy SEALs in 2011, the AUMF pretty clearly delegated power to President Bush and then President Obama to use military force in Afghanistan against al Q’aeda and the Taliban, which was harboring al Q’aeda. It also can fairly be said to have authorized at least some military actions against Pakistan, given the latter’s less-than-full cooperation with U.S. forces fighting in neighboring Afghanistan and apparent harboring of bin Laden before he was killed.

However, since Congress passed the post-9/11 AUMF, U.S. Presidents have invoked it as support for military action in at least 20 other countries beyond Afghanistan and Pakistan. Some of those actions were relatively minor, but others were more substantial. And whether or not justified on national security grounds, it is difficult to believe that all of the targets were nations, organizations, or persons that committed, aided, or harbored al Q’aeda—which is, after all, what the AUMF requires.

The Taliban Resurgence

To be sure, there is a potentially significant distinction between the Iraq-related AUMFs and the post-9/11 AUMF. The government of Saddam Hussein has long been out of power in Iraq, whereas, following the chaotic withdrawal of U.S. forces in 2021, a resurgent Taliban once again rules over Afghanistan.

Even so, there may be less to that distinction than meets the eye. For one thing, although the current Iraqi government is not an active enemy, it has close relations with long-time U.S. adversary Iran. Meanwhile, we can acknowledge the barbarity and incompetence of the Taliban regime while also noting that it does not appear to be providing a haven for anti-U.S. terrorists. Despite the poor execution of the withdrawal of U.S. forces from Afghanistan, the premise of that withdrawal remains valid: the U.S. can protect its people and interests adequately by monitoring and, if necessary, responding to developments in Afghanistan as necessary; indeed, maintaining a large but unwelcome troop presence in Afghanistan would likely inspire more attacks than it would prevent.

Meanwhile, so long as the post-9/11 AUMF remains on the books, President Biden and his successors will continue to invoke it as authority for conducting counter-terrorism operations in the territory of foreign sovereigns all over the world. Failure to repeal the post-9/11 AUMF will thus be read as tacit approval of this interventionist policy.

Well, readers might wonder, what’s wrong with that? Don’t we want U.S. Presidents to take those actions necessary to secure our national security? The short answer is no—at least not unilaterally.

The Constitution divides responsibility for military matters between the President, as Commander in Chief, and Congress, which declares war (or its equivalent via an AUMF), funds the armed forces, and exercises various other powers. In the modern era, however, Congress has often acquiesced in Presidents’ decisions to undertake military action on their own.

Some of those unilateral presidential actions were permissible. Neither the courts nor Congress categorically deny that the President has both the power and the duty to use military force to repel sudden attacks. Accordingly, insofar as some presidential actions over the last two-decades-plus addressed national security emergencies that left no time to seek authorization from Congress, they would be lawful even without the post-9/11 AUMF.

However, U.S. military action during the last two decades with respect to Syria, Libya, Yemen, and various other hot-spots evolved over periods of months and years. The four Presidents who developed and implemented U.S. strategy during this period could have but did not go to Congress, relying instead on increasingly strained readings of the post-9/11 AUMF.

* * *

Proponents of repealing the Iraq-related AUMFs say that doing so is necessary to reassert a role for Congress in U.S. military policy. They are correct, but they don’t go far enough. Unless and until Congress also repeals the post-9/11 AUMF, Presidents will embark on overseas military adventures without the kind of sober deliberation from the People’s representatives in Congress that the Constitution wisely requires.

Comments are closed.