OPINION:
Buried beneath the tumult of the government shutdown, the historic end to the Hamas-Israel conflict and somber return of the living hostages, the Senate unanimously voted to repeal the 1991 and 2002 authorizations for the use of military force as part of this year’s National Defense Authorization Act.
Last month, the House of Representatives voted on a bipartisan amendment to repeal the two AUMFs in its version of the NDAA, increasing the likelihood that the two vestigial war authorizations will make it out of conference.
It’s about time. The power to declare war, or repeal a wartime authorization, is one of the most solemn duties of Congress.
Repealing these two Iraq AUMFs will not affect the 2001 AUMF, passed after the 9/11 attacks and on which every administration since President George W. Bush has relied to target and detain members of al Qaeda, the Taliban, the Islamic State group and associated forces.
These actions, long in coming, are prudent policy, as I wrote here, and offer a glimmer of optimism that Congress may finally reclaim its long-forsaken war powers under Article I, Section 8, Clause 11 of the Constitution.
Missions accomplished
The 1991 Iraq AUMF remains in place even though the primary purpose of that war authorization — to enforce United Nations Security Council Resolutions demanding Iraq to withdraw from Kuwait — was accomplished decades ago.
The primary focus of the 2002 Iraq AUMF was the threat posed by Saddam Hussein and Iraq. Section three authorized the president to “use the Armed Forces of the United States as he determines to be necessary and appropriate to: (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.”
However, unlike the 1991 Iraq AUMF, which authorized the president to enforce previously adopted and delineated Security Council resolutions, the 2002 Iraq AUMF arguably gave the president broader authority because it included “all relevant” resolutions. All relevant resolutions included the United Nations Security Council Resolutions mentioned in the 1991 Iraq AUMF, thus tying the two Iraq AUMFs to each other.
The Bush and Obama administrations relied on the 2002 Iraq AUMF to maintain the presence of U.S. armed forces and to conduct military operations in Iraq. The U.N. Security Council terminated the mandate of the U.S.-led multinational force in Iraq as of Dec. 31, 2008. President Obama ordered all U.S. forces to withdraw at the end of December 2011, which they did.
When the Islamic State group became a dominant force in Iraq from 2012 to 2014, the Obama administration took military action against it and relied on the 2001 AUMF and the 2002 Iraq AUMF as domestic statutory authority. In its first (and only) war powers report, filed in accordance with Section 1264 of the NDAA, the Obama administration stated that “as a matter of domestic law, the 2001 AUMF and the 2002 [Iraq] AUMF authorize the U.S. use of force against ISIL in Iraq.”
Similarly, the Obama administration wrote that, with respect to Syria, “the 2001 AUMF and, in certain circumstances, the 2002 AUMF authorize the use of force in Syria against al-Qa’ida in Syria and ISIL.”
Oddly enough, even while it was engaged in military action against the Islamic State group, including bombing the terrorist organization’s fighters, the Obama administration was signaling that it wanted to repeal the 2002 AUMF.
The first Trump administration has also submitted one NDAA Section 1264 war powers report. In the section titled “The Domestic Law Bases for the Ongoing Use of U.S. Military Force,” it acknowledges that the “primary focus of the 2002 AUMF” was “the threat posed by Saddam Hussein’s regime in Iraq.” The report states that the “express goals” have always been understood to authorize the use of force for the related dual purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq.
It is at best debatable whether the 2002 Iraq AUMF’s “express goals” have “always” been understood to include “helping establish a stable, democratic Iraq.” Nowhere in the statute does it say that the goal is to “establish a stable, democratic Iraq.”
Reclaiming war powers
Congress has declared war five times in 11 conflicts and authorized the use of military force more than 40 times. All declared wars have ended in treaties, and war authorizations end in various ways, except for the 1991 and 2002 Iraq AUMFs and the 1957 Middle East Force Resolution, each of which remains in effect.
Much of the credit for this bipartisan repeal effort should go to Sens. Todd Young, Indiana Republican, and Tim Kaine, Virginia Democrat, who have been persistent for years in their attempts to get Congress to repeal what Mr. Kaine called a “zombie authorization.” Over the years, their efforts gained steam, culminating in the House and Senate repeal.
The duo made a compelling case during an armchair discussion broadcast on C-SPAN in 2021 that congressional inaction has a price and that oversight over war powers is a core function and responsibility of Congress.
It’s high time to end these AUMFs, especially as our country faces current threats, one or more of which may require Congress and the administration to work together to confront those national security threats. By repealing outdated and spent war authorizations, Congress may finally exercise legislative muscles that have atrophied for far too long and reassert its duty to declare (or repeal) war powers.
• Charles Stimson is the deputy director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies.
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