In the days after the 9/11 attacks, Congress was asked to give President Bush the authority to use the military “to deter and preempt any future acts of terrorism or aggression against the United States.” Even then, with the wreckage of the towers and the Pentagon still burning, Congress declined to do so. Instead, it passed the 2001 Authorization to Use Military Force (or “AUMF”), allowing that “the 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.”
Last Wednesday was the 15th anniversary of President Bush’s signing of the AUMF, and it is clear that Congress had no idea this single sentence would have resulted in military actions costing some 1.6 trillion dollars -- close to $30 billion a word – a decade and a half later, with absolutely no end in sight.
In part that is because Congress could not have contemplated how many different national conflicts this little sentence – mentioning “organizations” and “persons” prominently, butnaming no specific governments – would be read to permit by the White House. Surely, Congress understood some degree of intervention in Afghanistan was likely; the mention of “harboring” clearly covered that invasion at its outset. But just a few months after the AUMF passed, in August 2002, White House attorneys claimed it allowed the president to invade Iraq without any other congressional approval. Congress notoriously went on to provide specific authorization for the Iraq war in October 2002, but the Bush White House never backed off its improbable view that Saddam was linked to Al Qaeda and that the original AUMF therefore permitted what has become thirteen and a half years of entanglement in Iraq. (Indeed, the Iraq AUMF cited the presence of Al Qaeda members inside Iraq as cause, although Al Qaeda in Iraq did not emerge until after, and in response to, our invasion in 2003.)
That was not the only time White House officials foreshadowed their view of the unlimited geographic scope of the AUMF. During Senate testimony in October 2005, then Secretary of State Condoleezza Rice cited the AUMF as sufficient grounds to invade Syria. Eleven years later, while President Obama has asked Congress to authorize our military intervention in Syria’s civil war, the fact that Congress has failed to do so has not stopped the 2001 AUMF from being relied on as authority for that intervention – which the next president or events on the ground could easily turn into a quagmire. Strikes in Libya against ISIL members this year have also been explained as under the authority of the AUMF. That ISIL itself is at odds with Al Qaeda simply illustrates the fundamental problem: The AUMF has been used to authorize military action worldwide against groups that had nothing to do with 9/11, that indeed didn’t exist until well after those attacks, and whose connection or association or allegiance to Al Qaeda and the Taliban is at best questionable.
Our periodic strikes in Somalia and more frequent ones in Yemen are also generally claimed to fall within the ambit of the AUMF. Indeed, just about the entirety of our global drone war – which has claimed civilian casualties on the same scale as our military losses in Afghanistan or Iraq – has also been explained as within the scope of what Congress authorized with those 60 words three days after 9/11. Many such strikes are premised on expansive views of which militant groups in those corners of the globe are “affiliated with” the original Al Qaeda or Taliban. And several U.S. citizens have been targeted by such strikes.
Some 6 billion dollars of expenditures – pocket change against the total, really – has been wasted on detentions at Guantanamo, which, fourteen years in, are still being justified as detentions in furtherance of the original AUMF. People picked up in Bosnia, or Gambia in West Africa, or cities in Pakistan far from the conflict in Afghanistan have been held; detentions continue today, even after the original conflict in Afghanistan has long been effectively over. Domestically, two U.S. citizens were held for years inside the U.S. without charge on the pretense that not only were their detentions as “enemy combatants” authorized as military measures under the AUMF, but that a special statute written to prevent domestic martial law detentions (the Non-Detention Act of 1971) did not apply to them because Congress intended to trump it with the AUMF.
The courts bought this argument; indeed, throughout the post-9/11 era the courts swallowed whole most of these executive flights of imagination about the powers Congress intended to pass along back in 2001. Only the creation of a whole parallel court system induced some pushback: Just as he claimed he had authority to decide how long to detain people in connection with the AUMF war, President Bush claimed he had the authority to create a whole new system of justice in the military commissions under the AUMF, but the Supreme Court soundly rejected the argument in its 2006 Hamdan decision.
Finally, for good measure, the vast warrantless NSA program revealed by the New York Times in December 2005 (and subsequently dwarfed by the many other programs revealed by Edward Snowden eight years later) was originally defended in court by the Bush administration on the grounds that with the AUMF, Congress conveyed authority to listen to communications of people in the United States with foreigners the executive though might have links to terrorism. Total cost: several billion dollars; total results: apparently, next to none.
In an era when judges seem only rarely interested in enforcing limits on how broadly the White House reads authorizations of force, what might Congress have done differently? Well, first and foremost, it could have imposed clear textual limits on how long the authorization should last and where in the world it should apply. At Guantanamo, both the Bush and Obama’s Justice Departments have argued that courts must be highly deferential to executive determinations about when hostilities have ended. But setting clear time limits in the 2001 AUMF would have eventually rendered detentions without charge unlawful, and would have given courts a clear path to order them to end. As it stands, the open-ended 2001 AUMF “is the longest war authorization that has ever been in continual use” according to the Center for American Progress. Similarly, setting geographic limits would have prevented the fight from spreading to Yemen, Somalia, Syria, and wherever it travels to next. And the authorization could have more clearly spelled out that it did not affect the rights of American citizens, admittedly a vast minority of its victims.
But what can be done now? President Obama himself began the public discussion about repealing and replacing the AUMF three years ago, and recently he has asked Congress to pass an AUMF tailored to the fight against ISIL. That request might serve as an occasion to reexamine the earlier AUMF; as Secretary Kerry has said, it is symbolically important to show that the branches of our democratic government are united in our resolve. It seems appropriate to ask what the continued, unquestioned invocation of the 2001 AUMF says about our democracy. The answer, sadly, is that our elected officials are content with an infinite war against a strategy (terrorism) that will sustain itself because we are willing to go to excess – to declare war – against it.
