The Authorization for the Use of Military Force Needs to be Reworked, and Badly

By Saxon Bryant
Saxon Bryant is a freshman at the University of Pennsylvania studying Business Economics and Public Policy and an Associate Editor for the Penn Undergraduate Law Journal.

The Authorization for the Use of Military Force (AUMF) is a joint resolution passed by Congress after 9/11 empowering the president “to use all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks,” as well as against those who “harbored such organizations or persons.” [1] Despite being only two pages in length, this document, and a subsequent 2002 AUMF for Iraq, have served as the foundation for U.S. military actions against the Taliban, Al-Qaeda, and the Islamic State. Over the years, various legal experts have pointed out numerous issues with the existing legal framework successive administrations have built using the AUMF.

The first relates to questions of constitutional powers. While the president may have certain authorities granted under Article II, the use of force during non-emergencies was meant to be by congressional approval only. [2] This idea is reflected in the 1973 War Powers Resolution, which stipulates that the U.S. president may send U.S. armed forces into action abroad only by declaration of war by Congress. [3] Alternatively, in non-war scenarios, the act requires the president to notify Congress within 48 hours of committing armed forces to military action and subjects the action to congressional approval every 60 days.

These are meant to maintain a constitutional balance of powers while enforcing our national security. The AUMF however allows for the president to deploy forces without being subject to these same guidelines. Many scholars find the notion of an executive branch which can deploy armed forces indefinitely, without congressional oversight, constitutionally dubious at best. [4] The question as to whether executive deployment of forces via the AUMF can violate the War Powers Resolution was raised in Smith v. Obama, but the case was dismissed by the U.S. District Court.

However, the AUMF was not intended to be without limits. In the 2001 AUMF, Congress explicitly authorizes the president to use force against only those groups involved in the September 11th attacks. Despite this clear congressional mandate, the Obama administration interpreted the 2001 AUMF as applying to other threats such as the Islamic State, arguing IS as a co-belligerent alongside Al-Qaeda. This is in spite of the fact that Al-Qaeda officially broke ties with IS in 2014 and that the two organizations are now fighting one another. [5]

This brings up the second issue surrounding AUMF: scope. The expansion of the original act’s mandate has brought presidential authority in this field into a grey area. As it stands, the AUMF has become the backbone on an indefinite, unrestrained conflict against Al-Qaeda and groups affiliated with it to varying degrees. [6] This leaves open a very important question: if the 2001 AUMF can be interpreted as applying beyond the scope of the September 11th attacks, how far does it extend? Leaving this question unanswered makes way for future administrations to apply the AUMF to any desired threats and unilaterally drag the nation into conflict without ever having to go through the legislative branch.

The need for reform is clear. A multitude of legal scholars [7], including John B Bellinger III, who helped draft the 2001 AUMF, have repeatedly mentioned the need to revise and update the existing AUMF. [8] There have been several proposals put forth on how to modify the AUMF, though each has fallen short of implementation.

President Obama attempted to pass a new AUMF in 2015 with specific authorization for IS and restrictions on long term and ground troop operations. [9] Rep. Adam Schiff (D-CA) proposed placing greater congressional oversight on the president and the designation of groups considered associated with terror cells, along with repealing the 2001 and 2002 AUMFs. [10] Senator Mitch McConnell (R-KY) suggested that the president be forced to submit reports to Congress no less than every 60 days U.S. forces were engaged abroad. [11] Senators Tim Kaine (D-VA) and Jeff Flake (R-AZ) created a sunset period for military action along with congressional oversight over its location in addition to the designation of groups considered affiliated to terrorists.

Despite all of this conversation, none of these proposed changes ever became law. Given that the 2001 and 2002 AUMF are still in effect, to what does the current Trump administration attribute that provides it with statutory authority to conduct its airstrikes in Syria?

On October 30th, 2017, now-former Secretary of State Rex Tillerson and Secretary of Defense James Mattis testified before the Senate Foreign Relations Committee on the Trump Administration’s views regarding the AUMF. [12] In their statements, the secretaries emphasized that the existing AUMF legislation constituted a sufficient legal basis for the president’s military actions against the various groups with whom the United States is in conflict.

This position is consistent with the December 2016 report released by the administration outlining the legal and policy framework guiding the use of military force, which cites the  AUMF as the primary source of legal authority. [13] Responding to the various proposed changes however, the secretaries noted a few key features any replacement AUMF would have. These included: freedom from time, geographical, or operational constraints. The administration’s rationale behind these conditions is that a broad legal mandate is necessary to address the transnational threats facing the United States today. From this position, it seems clear that the administration would not be amenable to any of the proposed AUMF reforms and does not seem to have any drafts forthcoming.

Yet despite these issues and alternatives, the AUMF has survived mainly out of a stalemate between an executive branch that desires broad statutory authorization and a legislative branch that tries to curtail that power. Meanwhile, attempts to get a definitive judicial answer to settle this dispute, such as in Smith v. Trump, have thus far not addressed the issue of the applicability of the 2001 and 2002 AUMFs to IS. [14] Thus it seems certain that until one side relents, the AUMF shall continue to be stretched further and further beyond its original mandate and intention.

[1] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
[2] Edwards, Mickey, et al. “DECIDING TO USE FORCE ABROAD: War Powers in a System of Checks and Balances” The Constitution Project. Accessed on February 11th, 2018. http://constitutionproject.org/pdf/War_Powers_Deciding_To_Use_Force_Abroad1.pdf
[3] http://avalon.law.yale.edu/20th_century/warpower.asp
[4] Glennon, Michael. “Smith v. Obama: The Political Question Misapplied” Just Security. November 22, 2016. https://www.justsecurity.org/34803/smith-v-obama-political-question-doctrine-misapplied/
[5] Sly, Liz. “Al-Qaeda disavows any ties with radical Islamist ISIS group in Syria, Iraq” Washington Post. February 2, 2014. https://www.washingtonpost.com/world/middle_east/al-qaeda-disavows-any-ties-with-radical-islamist-isis-group-in-syria-iraq/2014/02/03/2c9afc3a-8cef-11e3-98ab-fe5228217bd1_story.html?utm_term=.c718e54f5f02
[6] Bradley, Curtis A., and Jack Landman Goldsmith. "Obama's AUMF Legacy." The American Journal of International Law 110 (August 21, 2016): Accessed on February 11th, 2018. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2823701
[7] Laub, Zachary. "Debating the Legality of the Post-9/11 ‘Forever War’." Accessed February 11, 2018. https://www.cfr.org/expert-roundup/debating-legality-post-911-forever-war.
[8] Reviewing Congressional Authorizations on Use of Force, Committee on Foreign Relations, U.S. Senate. 115 Cong, (2017) (Testimony of John B. Bellinger III Partner, Arnold & Porter Kaye Scholer LLP) https://www.foreign.senate.gov/imo/media/doc/062017_Bellinger_Testimony.pdf
[9] https://obamawhitehouse.archives.gov/the-press-office/2015/02/11/letter-president-authorization-use-united-states-armed-forces-connection
[10] H.J.Res.100 - Consolidated Authorization for Use of Military Force Resolution of 2017,115th Congress. https://www.congress.gov/bill/115th-congress/house-joint-resolution/100/
[11] S.J.Res.29 - Authorization for Use of Military Force Against the Islamic State of Iraq and the Levant and its Associated Forces, 114th Congress. https://www.congress.gov/bill/114th-congress/senate-joint-resolution/29/text
[12] https://www.foreign.senate.gov/hearings/the-authorizations-for-the-use-of-military-force-administration-perspective_103017
[13] https://www.justsecurity.org/wp-content/uploads/2016/12/framework.Report_Final.pdf
[14] Ackerman, Bruce. “Smith v. Trump in the DC Circuit: A Guided Tour of the Oral Argument” Lawfare. November 1, 2017.  https://www.lawfareblog.com/smith-v-trump-dc-circuit-guided-tour-oral-argument
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