Stretching the 2001 AUMF: a history of two presidencies.

Author:Murray, Shoon Kathleen
Position::The Contemporary Presidency - Authorization for the Use of Military Force - Essay
 
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In a hasty response to the 9/11 attacks, Congress authorized a military conflict with al-Qaeda. The statute, known as the 2001 Authorization for the Use of Military Force (AUMF), was meant to be a temporary grant of powers to the president to fight the perpetrators of the attack. This article analyzes how two very different presidents have interpreted the authorities given them by the 2001 AUMF in controversial ways, stretching the statute far beyond original congressional intent.

The discussion first describes the rushed passage of the statute, establishing that congressional leaders intended to avoid granting permanent new war powers to the executive branch. The second section details how the Bush administration aggressively interpreted the 2001 AUMF as providing implicit congressional support for a wide variety of wartime activities, including indefinite detention, military tribunals, and National Security Agency (NSA) domestic surveillance without a warrant. It also discusses the sharp change in U.S. counterterrorism policy as the government moved from a predominantly law enforcement approach to a war-fighting model that allowed the capture and lethal targeting of individuals in other countries, which was carried forward into the Obama administration. The third section shows how the Obama administration further stretched the statute's scope, first by claiming it gave the president authorization to target emergent terrorist organizations seen as "cobelligerents" with al-Qaeda in places such as Yemen. Then once the Islamic State of Iraq and the Levant (ISIL, also known as ISIS or as the Islamic State) began taking territory in Iraq, the Obama administration again stretched its interpretation of the 2001 AUMF, this time to cover sustained military force against an organization that had no involvement in 9/11 and no ongoing collaboration with core al-Qaeda. The article concludes with a brief consideration of the future trajectory of the 2001 AUMF, which could become a long-term, if not permanent, broadening of presidential war authority to combat terrorists.

Original Congressional Intent

Congressional authorization to use military force against the al-Qaeda network marked a watershed in counterterrorism policy. Previously the United States had treated terrorism as a law enforcement issue by bringing individual criminals to trial, or it had conducted one-off air strikes in retaliation for a specific terrorist attack; the country had never engaged in a sustained military campaign against a terrorist organization. But the response to 9/11 was different. The shock of an attack on the homeland and the loss of so many lives led to President George W. Bush's immediate declaration that these attacks were "more than acts of terror. They were acts of war" (Bush 2001). As a result, the two branches of government held tense two-day-long negotiations over the exact wording of a war authorization to fight the perpetrators of the attack. The substance of those negotiations reveals the original congressional intent behind the 2001 AUMF.

The initiative for a war authorization came from the White House. On the morning of the attack, Vice President Dick Cheney began strategizing about what extraordinary authority the president would need to respond to the emergency. Cheney would be assisted by his long-time lawyer David Addington; White House Counsel Alberto R. Gonzales, and his deputy Timothy E. Flanigan; and John C. Yoo from the Department of Justice's (DOJ) Office of Legal Counsel (OLC) (Gellman and Becker 2007).

When President Bush met congressional leadership the next morning, on September 12, he had a list of requests ready. He wanted a supplementary spending bill, increased authority in law enforcement at home, and, most important here, a congressional authorization to use military force abroad.

The same executive-branch lawyers wrote the first draft of the 2001 AUMF and sent it to Congress that evening (Johnsen 2014). The language was sweeping:

That the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, harbored, committed, or aided in the planning or commission of the attacks against the United States that occurred on September 11, 2001, and to deter and pre-empt any future acts of terrorism or aggression against the United States. (Quoted in Abramowitz 2002, emphasis added)

The last clause would have eviscerated the War Powers Resolution of 1973 and threatened the constitutional balance regarding war making (Murray 2014). As Senate Majority Leader Tom Daschle later wrote, the proposed language would have granted the president "a blank check to go anywhere, anytime, against anyone the Bush administration or any subsequent administration deemed capable of carrying out an attack" (Daschle [with D'Orso] 2003, 124).

Unsurprisingly, congressional leaders rejected the draft language (Daschle [ with D'Orso] 2003, 123). Staff from the White House and Congress then haggled over the wording into the night of Thursday, September 13. A "consensus quickly developed that the authority should be limited to those responsible for the September 11 attacks, and to any country harboring those responsible" (Abramowitz 2002). The problematic phrase "to deter and pre-empt any future acts of terrorism or aggression against the United States" was removed from the resolution itself and instead reworded and put in the preamble where it had no legal force. As legal scholar Michael Glennon observed, "a whereas clause" is not "part of the legally operative language of the statute" (quoted in U.S. Senate 2002, 55).

The final wording limits the use of force to actors with a nexus to 9/11- It reads in whole:

IN GENERAL.--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. It also explicitly stipulates that the 2001 AUMF is consistent with the 1973 War Powers Resolution. It is a "specific statutory authorization" nested within that older law (Murray 2014).

The White House tried to slip in, at the last minute, words to permit the use of military force even within the boundaries of the United States. "Literally minutes before the Senate cast its vote," Daschle revealed later, "the administration [via Gonzales] sought to add the words 'in the United States and' after 'appropriate force' in the agreedupon text" (Daschle 2005; Mayer 2008, 44). Daschle refused.

Once the final wording was agreed upon, both houses of Congress acted with uncharacteristic speed. The Senate convened that Friday morning and finished voting in about half an hour, 98 to 0. (1) The House also passed the authorization the same day, 420 to 1, and the president signed it into law four days later, on September 18." (2)

The final wording of the 2001 AUMF is clear: it is limited to the perpetrators of the 9/11 attack. Among the few members allowed brief remarks before the Senate vote, then-Senator John Kerry observed that the authorization gives "the President the authority he needs to respond to this unprecedented attack on American citizens on U.S. soil," but it "does not give the President a blanket approval to take military action against others under the guise of fighting international terrorism" (quoted in Congressional Record 2001a, S9416-S9417).

Documenting this intent for the historical record, Senator Robert Byrd, then president pro tempore of the Senate, put both the AUMF text as first proposed by White House lawyers and the text as enacted by Congress into the Congressional Record (2001b, S9948-51). Byrd reiterated that "the use of force authority granted to the President extends only to the perpetrators of the September 11 attack ... That intent was made clear when Senators modified the text of the resolution proposed by the White House to limit the grant of authority to the September 11 attack" (Congressional Record 2001b, S9949).

Unintentionally, however, Congress still passed a resolution that was unusual in its lack of limits. At White House urging, congressional leaders made use of a legal framework--a broadly worded use-of-military-force authorization--that since the beginning of the twentieth century had only been applied to enemy nations (Grimmett 2012, 40). (3) Aimed at a terrorist network rather than a state, the resolution has neither geographic boundaries nor a temporal stopping point (Cronogue 2012, 337). And it was passed so quickly that the perpetrators of 9/11 had not yet even been officially named, allowing the president to determine who was responsible. According to French with Bradshaw,

Of the 35 instances that Congress has authorized the use of military force, 60 percent contained geographic limitations, 43 percent named the enemy, 37 percent limited the kinds of military operations or forces authorized to be employed, and 23 percent contained an expiration date. While 51 percent of such authorizations included just one of the previous four types of limitations, the 2001 AUMF is the sole case in American history that includes none. (2014, 4) Most problematic, the authorization gave the executive branch broad latitude to conduct armed conflicts in an open-ended number of countries--in Afghanistan to root out Osama bin Laden and punish the Taliban--but also wherever al-Qaeda (or its associates) might be operating.

From the start, the 2001 AUMF took on a life of its own beyond the control of Congress. Over time, the original intent of the resolution--that it be aimed at the perpetrators of the attack on 9/11--would be stretched in a manner that threatens long-term use of the war authority.

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