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Biden may be getting rid of the Authorizations for the Use of Military Force. That deserves a ‘Whoa.’

The possibility of addressing the legal framework for the war on terror is big news.

- March 6, 2021

Just over a week after the Biden administration conducted its first lethal military operation, an airstrike against Iranian-backed militia groups in Syria, President Biden has reportedly endorsed efforts to repeal and replace (so to speak) the various Authorizations for the Use of Military Force (AUMF) governing the war on terror. As TMC’s Elizabeth Saunders tweeted Friday, “this deserves a ‘Whoa.’”

It’s not so much that the current legal framework makes sense — as faithful TMC readers know, the 2001 AUMF, which passed days after the Sept. 11, 2001, attacks, has been stretched beyond recognition in an effort to apply it to terrorist groups on various continents unconnected to those attacks. The 2002 AUMF approving the Iraq War applies to a different world, its 1991 predecessor even more so. Notably, Biden did not seek authorization from Congress before striking Syria, but neither did he invoke these AUMFs in justifying it.

Here’s why the possibility of finally addressing the two Bush-era AUMFs is big news.

Once Congress gives its okay, presidents don’t want to give it back

Congressional approvals for military force have a habit of hanging around. As the Heritage Foundation’s Charles Stimson has pointed out, even the 1957 resolution allowing Dwight D. Eisenhower to use force in the Middle East against “armed aggression” driven by “international communism” remains on the books. (That one expires when “when the President shall determine that the peace and security of the nations in the general area of the Middle East are reasonably assured by international conditions.” Good luck with that.)

Presidents and members of Congress have resisted revisiting the post-9/11 AUMFs. Presidents, naturally, are loath to give up power granted to them. Barack Obama disavowed George W. Bush’s evocation of prerogative power, arguing he would ground his actions in power granted him in law or by the Constitution. But Obama administration lawyers were skilled at interpreting existing statute — very broadly, in the case of the AUMF, and very narrowly, in the case of the War Powers Resolution — in ways that did not constrain him very much.

Obama did seek to revisit the AUMFs in his second term. But when Obama sent Congress a draft authorization regarding the so-called Islamic State in 2015 it provided a three-year window for presidential discretion without doing much to constrain presidential power.

During the Trump administration, the Justice Department’s Office of Legal Counsel codified a generous approach to war powers in defending the president’s strikes on Syria itself (as opposed to ISIS forces physically within Syria). “The President could lawfully direct” those attacks or others, OLC opined, “because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.”

Congress has been (mostly) fine with presidents stretching authorizations

Defining “war” is not part of Article II of the Constitution, whatever OLC may imply. But Congress has rarely pushed back against presidential claims of this sort.

Voting to endorse military action can have bad outcomes — think of the 1983 Lebanon barracks attack that killed 241 U.S. troops — and legislators are often delighted not to have to take a public position. Criticizing an operation after the fact can yield political rewards without electoral blowback.

Complaining about a lawless process is easier than forging new law. Indeed, back in 2015, legislators effectively refused to discuss Obama’s new AUMF or more generally whether expanding the use of force against ISIS required new authorities from Congress. Then-Senate minority leader Harry M. Reid (D-Nev.) staked out a rather existential view: “I don’t believe in AUMFs.”

Is this time different? Maybe…

So what’s changed?

In recent years, Congress has made unusual, if still only occasional, efforts to deal itself back into the discussion over war powers. Bipartisan votes sought to end U.S. involvement on Saudi Arabia’s side of the proxy war in Yemen and even to “terminate the use of United States Armed Forces for hostilities against the Islamic Republic of Iran… unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran” after President Trump ordered the January 2020 strike that killed Iranian general Qassem Soleimani. Trump vetoed all of these, calling the last “very insulting.” Legislators were unable to muster the two-thirds majorities needed to override him.

Presidential endorsement of a revised legal framework for the war on terror is thus necessary — though as the Obama years show, perhaps not sufficient. On the plus side, perhaps hurried along by legislative anger by Biden’s recent Syria strikes, White House willingness to deal would seem to go beyond the proposal by Sens. Tim Kaine (D-Va.) and Todd Young (R-Ind.) to repeal the 1991 and 2002 Iran authorizations. Interestingly, Biden didn’t rely on the AUMFs, arguing instead it was “pursuant to the United States’ inherent right of self-defense” under the United Nations Charter. Though critics were unconvinced by that rationale, it did suggest Biden was open to different approaches than reliance on what Kaine has called “zombie authorizations.”

…but maybe not

Even so, there are immense difficulties in moving from an agreement in principle to a workable new AUMF. Obama’s 2015 version of a terrorism AUMF added ISIS to the 2001 version, preventing only the use of U.S. troops in “enduring offensive ground combat operations.” Some members thought this too limiting, some worthlessly vague. Sen. John McCain (R-Ariz.) settled on simply calling it “nonsense,” and the draft received no serious legislative consideration.

But nor did more restrictive versions — or less restrictive versions. What will the “narrow and specific framework” the White House has endorsed look like when put in legislative language? Specifying enemies risks simple rebranding efforts by terrorist groups; specifying geography risks their quick relocation; specifying time or tactics risks handcuffing military efficiency or effectiveness — and nobody wants the blame for that.

Yet the “blank check” approach allowing unchecked intervention carries even greater risks to constitutional and congressional responsibilities — of war driven not by deliberation but by inertia, and of the unaccountable commitment of American lives to military endeavors that lack popular support or understanding.

In short, even if both the president and legislators can overcome their competing motivations, there is a large family of devils left lurking in the details. The good news for now is that all sides seem to agree it’s time to exorcise them.