Scholarship Saturday: Our existing authorizations for use of military force (AUMF) are dead letter, they need to be repealed and replaced
On September 18, 2001, one week after 9/11, incensed by those “acts of treacherous violence committed against the United States and its citizens,” Congress passed a joint resolution which reads, in relevant part:
[T]he President is authorized 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.
2001 Authorization for Use of Military Force (AUMF) (115 Stat. 224).
That joint resolution, Public Law 107-40, has been cited as our jus ad bellum for warfare all over the globe. On October 9, 2001, George W. Bush tied combat operations in Afghanistan explicitly to that provision. House Document 107-31, 107th Congress, 1st Session. Twelve years later, on June 14, 2013, the Obama administration cited that Public Law again as its justification for providing “limited technical support to French forces” operating in Somalia against the terrorist group, Harakat al-Shabaab al-Mujahideen (translates as “Mujahideen Youth Movement,” commonly called “al-Shabaab”). That latter use of the authorization aptly illustrates the “slippery slope” nature of how the Executive Branch has employed Public Law 107-40.
Specifically, as The Guardian reported back in 2012, Al-Shabaab is, indeed, allied with Al Qaida. Al-Shabaab is also a horrific organization, guilty of grave atrocities. But, the plain language of Public Law 107-40 requires more: use of military force is only authorized against an “organization [that] planned, authorized, committed, or aided the terrorist attack that occurred on September 11, 2001.” Al-Shabaab did not even exist at the time of the 9/11 attacks. It grew out of another organization, the Islamic Courts Union (ICU), and, as the International Institute for Counter-terrorism has explained, that parent organization did not even come into existence until 2003. Similar questions can be raised about operations in Syria against the Islamic State of Iraq and Syria (ISIS) conducted under the Trump Administration.
Many commentators have raised just these sorts of concerns about weak statutory authority for the ever-expanding war on terrorism. The calls for a new AUMF has come from all corners: human rights advocacy organizations, libertarian think-tanks, and even, a rare bird, a bi-partisan coalition of Senators. Given such broad-based concerns about the continued viability of the 2001 AUMF, one might be tempted to expect that the courts would intervene. Such an expectation would be unwise. As the United States Court of Appeals for the First Circuit explained in the 2003 case of Doe v. Bush, courts will not get involved unless there is, truly, a constitutional crisis.
The war [on terror] is a product of the jointly supportive actions of the two branches to whom the congeries of the war powers have been committed. Because the branches are not in opposition, there is no necessity of determining boundaries. Should either branch be opposed to the continuance of hostilities, however, and present the issue in clear terms, a court might well take a different view. This question we do not face.
323 F.3d 133, 137 (1st Cir. 2003). In other words: If Congress thinks the Executive is abusing the language of the 2001 AUMF, then Congress should repeal that joint resolution and issue a new AUMF, one that makes its limitations explicit. To that end, Just Security published an article on January 21, 2021 by Tess Bridgeman, Ryan Goodman, Stephen Pomper and Steve Vladeck, entitled Principles for a 2021 Authorization for Use of Military Force.
The authors start by premising that failing to repeal and replace the 2001 AUMF could result in an even more expansive counterterrorism strategy given the fact that “in recent years” the Executive Branch has already shown a willingness to rely on “extreme interpretations” of that authorization. Bridgeman, Goodman, Pomper and Vladeck argue that a new AUMF is needed, and:
If not tailored appropriately, Congress risks writing an even broader blank check for the President than the 2001 AUMF turned out to be – and hard-wiring a ‘global war on terror’ that has no reasonable prospect of ending.
To provide appropriate tailoring, the authors recommend Congress proceed to enact a new AUMF guided by 7 principles:
1. Authorize force only against specific, identified, organized armed groups currently engaged in hostilities against the United States, and only to accomplish specifically defined mission objectives.
2. Explicitly preclude the use of force against countries or organized armed groups other than those specifically named.
3. Sunset authorizations to expire no more than 3 years after the authorization is issued, with no expedited procedure for expanding the authorization.
4. Condition the validity of a granted authorization on there being a joint certification by the Secretary of Defense, Secretary of State, and the Director of National Intelligence, every six months, that the named group is still conducting hostilities against the United States or still presents a grave and present threat of armed attack against the United States.
5. Require the exercise of granted authorization to comply with all relevant international law, including the law of armed conflict, jus ad bellum, and international human rights law.
6. Require reporting, every two months during the existence of an authorization, on the following:
(A) Where and how many U.S. personnel are deployed pursuant to the authorization;
7. Repeal the 2001 AUMF and the 2002 and 1991 AUMFs Regarding Iraq
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