On Joe Biden’s first full day as president, five House Democrats wrote him to urge that he work with Congress to retire the 2001 and 2002 Authorizations for Use of Military Force, or AUMFs. Working with Congress would be ideal, but if it proves impossible, the president should show real leadership by doing something his predecessors have been far too reluctant to do: give up some of his powers voluntarily.
Why is this so urgent? In two decades, at least 41 military operations in 19 countries have been launched under the cover of these two authorizations, which have been interpreted so broadly that they offer seemingly unlimited presidential war power. This contradicts not only the Constitution, which vests in Congress the power to declare war, but also the more detailed parameters of the 1973 War Powers Resolution, a law passed in the wake of the (undeclared) Vietnam War specifically to close the gap exploited in the absence of a war declaration. While it still provides some wiggle room, the War Powers Resolution clearly requires that any combat operations lasting longer than 60 days must be approved by Congress, either through a declaration of war or specific statutory authorization. The 2001 AUMF authorizes the president specifically to use force against those who committed or aided in the commission of the 9/11 terrorist attacks or harbored those who did. The 2002 AUMF authorizes use of force against the threat posed by Iraq specifically. Most of the operations subsequently pursued under these two AUMFs have at best tangential connections to their original purposes.
Subscribe to the Slatest newsletter
A daily email update of the stories you need to read right now.
The 2001 AUMF, passed just days after the 9/11 attacks, has been given a particularly expansive application. In addition to being the grounds for our long-standing war in Afghanistan, it has been used to justify foreign military training, advising, and assisting in the Philippines; foreign military training and equipping in Georgia; military deployment to Djibouti to enhance counterterrorism capabilities in Kenya, Ethiopia, and Eritrea; a variety of activities including a steady supply of strikes against al-Shabab in Somalia; direct military action in Yemen; military activities of U.S. special operations forces in Iraq, Syria, and Libya; deployments in Niger and Cameroon to provide intelligence and reconnaissance support to African partners conducting counterterrorism operations; and deployments to enhance counterterrorism capabilities of “friends and allies in areas around the globe.”
Several of the operations launched under the 2001 AUMF target the Islamic State, a terrorist organization that did not even exist in 2001. Nearly all have resulted in civilian casualties and high financial costs, and most have incurred U.S. troop casualties as well. None was subjected to the congressional oversight that our Constitution envisioned would raise the bar for lethal action and keep us out of wars of choice.
The danger of the steady expansion of executive war-making authority was on full display a year ago with the Trump administration’s strike against Iranian Gen. Qassem Soleimani. Congress called foul, passing a law requiring congressional authorization for any further military action against Iran, but that effort provided cold comfort in the wake of the provocative attack. Congress’ attempt to enforce its oversight failed even to reach the threshold necessary to escape a veto. Biden has the power to insulate America from future risks of an unpredictable executive wielding war power independently, but only if he chooses to do so.
The 2020 Democratic Party platform commits to delivering on this front with sweeping statements about “Ending Forever Wars,” and the Biden administration is already delivering on its promise to end support for the Saudi-led war in Yemen. This section of the platform is promising, specifying that Democratic leadership will work with Congress to repeal the two AUMFs and replace them “with a narrow and specific framework,” as a buffer against the slippery slope of mission creep. The platform document assures the American people that force will only be used “when necessary to protect national security and when the objective is clear and achievable—with the informed consent of the American people,” but then comes the caveat: “and where warranted, the approval of Congress.”
With so much promise comes so much hedging. It begs the question: How would an administration secure the informed consent of the American people if Congress is left out of the approval process? Who is to conduct the oversight that ensures the force used is necessary to protect national security and that the objective is clear and achievable? It is no coincidence that two decades of Congress passing the buck and the power to the executive to pursue military force of its own choosing has left us mired in small but numerous new lethal engagements with questionable connections to clear U.S. national security interests.
Biden could end the use of the existing AUMFs even without assistance from Congress, but he has to be willing to curb his own authority over military force in order to do so. Today’s broad executive war authorities have not been bestowed by law but by practice, through shifting norms and the complicity of a Congress willing to shirk its duties. Biden could reverse this trend quite easily. After all, the authorizations at issue are merely permissions for the executive branch to take military action. Biden could decide and announce that his administration is sunsetting the use of the two AUMFs at the end of this year, based on their age and unclear application to ongoing conflicts. He could inform the Pentagon and the American public that ongoing operations not separately authorized by Congress this year would be concluded in 2022.
Secretary of State Antony Blinken has indicated that the president generally supports revamping the AUMFs, but is concerned the administration won’t be able to reach consensus with Congress on what replaces them. Seeking a clear consensus as a precondition, however, is letting the perfect be the enemy of the good and, in the current political climate, likely unachievable. It also isn’t necessary. Fashioning a replacement is Congress’ job, if it chooses to do so. Ending the use of the AUMFs as described above would force an accounting of wide-ranging military activity ongoing across many countries. Under the War Powers Resolution, Congress would have 60 days from the date when the AUMFs are deemed expired to provide new authorizations, after which time any use of U.S. armed forces not specifically authorized would be terminated. Congress could buy time by extending this period by an additional 60-day period, but even delaying, for example, a withdrawal of troops from Afghanistan would require congressional action. The default in the absence of congressional action would be bringing our troops home. Congress would need to decide which operations independently merit reauthorization, enhancing accountability and transparency over our military activities abroad. This is as our Constitution intended. When our country makes decisions to use military force in new places and new ways, those decisions should be as closely tied to the American people and their interests as possible.
Biden’s most consequential authority at this stage lies in his ability to press Congress to again take up the debate over where we use force, a discussion that has been absent from far too many conflicts of choice in recent years. The challenge for the Biden administration is to accept that the president cannot control the outcome—Congress may disagree with the president on how to fight those conflicts going forward—but the president was never intended to fully control our use of force anyway. Critics of this approach might surmise that Congress could reach agreement on an even broader and indefinite authorization to replace these two. Congress might find that more palatable than authorizing specific war acts anew in some of the locations where they are ongoing. That could happen, leaving Biden in a similar situation to where he is today. But that would be on Congress, not the president. If Congress is able to secure such an authorization, paying no cost for doing so from its constituents, Biden would have at least done his part.
Congress will shirk its war powers responsibilities as long as it is allowed to do so. The people might ultimately permit it again, but that doesn’t mean the president must continue to do so too. As even recent history has shown, sometimes real leadership involves walking away from power.
