By Nils Holst
Congress is considering legislation that would repeal the 2002 law that sent U.S. troops into Iraq to depose Saddam Hussein. While largely a symbolic gesture, if passed the bill would represent the first time in a generation that Congress has moved to restrict the war powers of the president and end America’s “forever wars.”
The House of Representatives voted 268-161 on June 17 to repeal the Authorization for Use of Military Force Against Iraq Resolution of 2002, commonly referred to as the 2002 AUMF. The AUMF gave President George W. Bush congressional authority to use military force against Saddam Hussein’s regime.
The Senate Foreign Relations Committee was scheduled on June 22 to vote on similar legislation put forward by Sens. Tim Kaine (D-VA) and Todd Young (R-IN) that would repeal both the 2002 AUMF and the 1991 Gulf War AUMF, but several committee Republicans requested a delay. It is unclear when the committee will reschedule the vote, but Senate Majority Leader Chuck Schumer (D-NY) has promised to put the matter to a full Senate vote by the end of the year. President Joe Biden expressed support for the House bill and would likely support a similar bill in the Senate.
What is an AUMF?
Article I of the U.S. Constitution gives Congress the power to declare war. A formal declaration of war gives the president, as Commander in Chief, complete and unconditional access to all capabilities of the U.S. military as well as a range of other authorities including conscription and warrantless surveillance. Congress can also grant the president more restricted war powers through laws known as AUMFs, which have been the legal underpinnings of every major U.S. conflict since WWII, including the 2001 intervention in Afghanistan and the 2003 invasion of Iraq.
AUMFs can be written to restrict the war powers of the president, either through geographic limitations on military operations, specific locations or groups to attack, or an end date for troop deployments. Presidents of both parties have stretched AUMF legal authorities to cover what numerous critics consider unrelated military operations though, such as President Barack Obama’s use of the 2001 AUMF to justify counterterrorism operations in Syria, Yemen and Libya; and President Donald Trump’s use of the 2002 AUMF to justify the drone strike that killed Iranian general Qassem Soleimani. Congress rarely challenges these expansive interpretations, even when the president’s actions are thought to clearly go beyond the original intent of the AUMF.
AUMFs and the Global War on Terror
Three days after Sept. 11, 2001, Congress passed the 2001 AUMF, allowing the president to use force against any person or organization that helped plan or execute the attacks, or any country that harbored such groups. The Bush, Obama and Trump administrations relied on this broad wording to justify military operations in 19 countries , some against groups with no connection to the original 2001 attacks. Counterterrorism operations today are based on the legal authorities of either the 2001 AUMF, the president’s innate Article II defensive powers, or both.
The 2002 AUMF authorized the president to use military force against Saddam Hussein’s Iraq to enforce U.N. Security Council resolutions and protect the United States from the weapons of mass destruction some believed Saddam to possess. The 2002 AUMF has occasionally been used as a secondary legal justification for certain counterterrorism operations on the basis that the law’s phrasing, loosely interpreted, could include threats both to and from Iraq.
Congress Should Repeal the 2002 AUMF
The 2002 AUMF is unnecessary and irrelevant, and repealing it would be a small but important step toward reclaiming the authority of the legislative branch to determine when and how the nation goes to war. Not everyone is convinced though.
Opponents of repeal claim the United States still needs the legal authorities of the 2002 AUMF in order to fight Iranian proxy militias in Iraq. This is incorrect — the president would likely cite several overlapping legal authorities that give him the right to conduct military operations against terrorist threats, including Iranian proxy militias. The White House itself said that repeal won’t impact any current counterterrorism operations.
Another argument is that repealing the law without a replacement will signal weakness to America’s enemies. This suggests our adversaries care what legal authority the president invokes when he launches a drone strike or special forces raid, which is unlikely. It might be assumed that our enemies judge our actions, not our legalisms.
Finally, opponents claim the repeal effort is little more than a politically motivated reaction to President Trump’s use of the 2002 AUMF as part of his legal justification for the controversial drone strike that killed Soleimani, an Iranian general who planned attacks on U.S. troops in Iraq. While the Soleimani strike may have contributed to the latest push by House Democrats to repeal the 2002 AUMF, the first attempt to retire the law came in 2014 by Rep. Barbara Lee (D-CA-13), and there have been multiple bills in the years since.
While repealing the 2002 AUMF may not change day-to-day counterterrorism operations, it could encourage further discussions about the proper constitutional roles of the executive and legislative branches. It could also open the door to narrowing the scope of the 2001 AUMF, something members on both sides of the aisle support. War powers legislation cannot anticipate all possible crisis scenarios, so such debate is necessary to ensure all parts of the government can respond effectively in the future. Congress needs to strike the redundant and outdated 2002 AUMF from the books and stop shirking its Constitutional responsibilities.