Congress must reclaim its war powers and repeal outdated authorizations of military force

May 7, 2021
Columns

If lawmakers do not want the responsibility of debating and voting on decisions of war and peace then they should find a different profession.

We are members of Congress from different parts of the country, all with backgrounds in national security. We have committed our careers to public service, and we all have direct experience countering terrorism. We understand the threats that face this country, and we also understand the importance of representing our constituents as we work to counter these threats – while upholding our oaths to the Constitution.

The Constitution is clear: only Congress can declare war. Instead of responsibly executing this authority as the framers’ intended, Congress has steadily surrendered it to the executive branch under administrations of both parties.

As we approach the 20th anniversary of Sept. 11,  there is a renewed push in Washington to reassert this congressional authority.

Congress did not surrender this authority overnight, and reclaiming it will likewise require sustained commitment. The logical place to start is through repealing outdated, inactive authorizations for the use of military force (AUMFs) in the Middle East.

Vulnerable to Manipulation

In March, we introduced bipartisan legislation to do exactly that. The Outdated AUMF Repeal Act would repeal the 2002, 1991, and 1957 AUMFs.

The 2002 AUMF focused on the threat posed by Saddam Hussein’s regime, and it authorized the president to use military force to “defend the national security of the United States against the continuing threat posed by Iraq” and “enforce all relevant United National Security Council resolutions regarding Iraq.” It has been nearly a decade since the 2002 AUMF has been used as the primary justification for any use of military force by the United States. Instead it has only been used by administrations as an “alternative statutory basis” to reinforce other sources of authority to use such force.

Importantly, we want to make clear that the 2001 AUMF – not the 2002 AUMF – provides the heavy lifting for the legal framework for ongoing counterterror operations, including against ISIS, and repealing the 2002 AUMF would have no impact on current, ongoing counter-terrorism efforts. The 2002 AUMF is not necessary for any national security reason, and in fact, leaving it on the books leaves it vulnerable to being stretched and manipulated by future presidential administrations.

Last Congress, the House voted to repeal the 2002 AUMF on a bipartisan basis. This year, legislation to repeal the 2002 AUMF has already passed out of the House Foreign Affairs Committee.

Pulled from the history books

The 2002 AUMF is not the only authorization involving Iraq still on the books. The 1991 Gulf War AUMF, which authorized military force following Saddam Hussein’s invasion of Kuwait, is still law despite the war’s end 30 years ago.

Going back even further, the U.S. Code retains a Cold War-era 1957 authorization for the president to employ military force to resist armed aggression in the Middle East from “any country controlled by international communism.” While it is safe to say that none of us would like to see international communism ascendent, the 1957 text has clearly outlived its relevance and should be repealed.

We view taking these outdated AUMFs off the books as a matter of constitutional hygiene. Doing so would send the message that Congress is serious about reclaiming its constitutional responsibilities. It would serve as an important first step in building the bipartisan momentum required to restore congressional oversight over how that authority is being exercised by the executive.

Looking ahead – 2001 AUMF

Beyond repealing outdated, unnecessary AUMFs, we are also committed to engaging in an informed debate to devise a replacement to the 2001 AUMF.

Over the past two decades, American counterterrorism operations have largely relied on the 2001 AUMF, an overly-broad 60-word authorization that became law one week after Sept. 11. The 2001 AUMF provided President George W. Bush with the authority to use “all necessary and appropriate force” against “nations, organizations, or persons” that “planned, authorized, committed, or aided” the Sept. 11 attacks, along with any who harbored these organizations. Since then, American servicemembers have supported counterterrorism operations in 19 countries, often against groups that did not even exist on Sept. 11. 

It is long past time for Congress to reassert its constitutional obligations. We understand the debate on how to replace the 2001 AUMF will be heated, and careful consideration must be given to threats that persist and potential boundaries such as scope of operations, geographic limits, and target groups. Americans might disagree on many of the specifics, but there is plenty of room for discussion and compromise between Republicans and Democrats.

We agree that American servicemembers in harm’s way deserve the reassurance that the American people, acting through their representatives in Congress, have bought into their mission, provided the necessary resources, and are committed to their success.

If members of Congress do not want the responsibility of debating and voting on decisions of war and peace – the responsibility to make tough, grave decisions that affect the lives of our servicemembers and their families – then they should find a different profession.

When it comes to war powers, Congress is the ultimate authority. It’s time we act like it.

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