The 2001 Authorization for Use of Military Force (AUMF), which the United States Congress enacted after 9/11 to authorize combat against Al Qaeda, is still being used to authorize U.S. military operations—many against groups that did not exist during the September 11 attacks. For example, in October 2013 the Pentagon used the AUMF as a source of authorization for a raid in Somalia targeting a senior Shabaab leader. The legislation is also routinely used to justify targeted killing with drone technology that did not exist in 2001. Members of the executive branch have reaffirmed the territorial limitlessness of the AUMF, with Pentagon officials stating that they would not hesitate to use it even in new battlefields such as Congo or Syria.
Successfully revising the AUMF to make it more specific, precise and targeted would challenge the momentum of almost 70 years of political practice around war powers.
What would be a more constitutionally sound basis for fighting the war on terrorism? With a notable exception, most commentary converges on a series of recommendations specifying that authorizations for war should:
- either specifically name U.S. enemies or provide for a transparent process by which enemies are named;
- define the territories where war may be fought;
- define the government’s detention and surveillance powers;
- provide guidelines pertaining to targeted killings; and
- include a sunset clause if Congress does not affirmatively renew its authority.
When considering the likelihood of achieving such reforms, commentators often use Vietnam and World War II as the relevant precedents. But as Stephen Griffin has persuasively argued, the Cold War is the most relevant precedent for the long wars of the 20th century. Today’s war on terror, like the Cold War, targets ideological rather than nation-based enemies. Both wars have generated huge transformations and reorganization of state capacities, and both have involved delegations of power and state capacity to the president without temporal or territorial limits.
Using the Cold War as the relevant historic precedent reveals at least two important lessons for today’s deliberations about the AUMF. The first is about the role of party outliers in restricting presidential power. Heather Hurlburt recently despaired of reform, in part because of the lack of internal coherence in the parties: Republicans such as Rand Paul push for serious congressional involvement in war, while Lindsay Graham urges the president to view the entire earth as his battlefield. Neither are Democrats eager to take on a Democratic president.
In Vietnam, Senator Fulbright’s hearings did a great deal to legitimate public opposition to executive war powers. Shifting public opinion was then reinforced with a partisan-institutional divide when a unified Democratic Congress squared off against Nixon. In 1971, Congress managed to repeal the Gulf of Tonkin Resolution, but despite this the president continued bombing Cambodia under his Article II powers up through 1973.
During the early Cold War, important dissenters took on presidents of their own party, and were not always of the party mainstream. Senators Taft and Bricker were relentless in their quest to rein in executive powers, creating serious headaches for both Truman and Eisenhower. (Taft did so while serving as the Senate Majority Leader for Republicans during a Republican presidential administration.) Conservative resistance to presidential war powers influenced the executive branch to stop seeking international human rights covenants, and influenced Eisenhower towards maintaining strong consultative practices with Congress. Liberals such as Claude Pepper achieved less (in part due to McCarthy-like intimidation), but still brought criticisms of the emerging Cold War order into the public sphere during the Truman administration.
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Successfully revising the AUMF to make it more specific, precise and targeted would challenge the momentum of almost 70 years of political practice around war powers. The early Cold War reveals a possible role for in-party dispute and marginal party members in effecting such transformations. It also reveals the role of political agitation and influence—not only statutory limits—in disciplining presidential war powers.
A second lesson is about the importance of engaging global constituencies in U.S. deliberations. The AUMF allows the United States to target individuals all over the globe, and the U.S. is outsourcing its strike capabilities by providing target intelligence to states that use the intelligence for their own purposes. (These countries include Somalia, Turkey, Uganda, Honduras, and Mali, at least.) Many such missions have nothing to do with preventing another terrorist attack on U.S. territory and everything to do with a ‘war on terror’ more broadly – exactly what President Obama campaigned against.
Which restrictions make sense for limiting U.S. involvement in the security work of other states for a variety of ends not related to September 11? This question deeply affects global constituencies, and should be discussed in light of global, not just national, needs.
The Cold War order emerged while the United States took on the tremendous work of developing new institutions for global conversation and global security, especially NATO and the United Nations. Today, the United Nations has not been a strong force pushing for global conversation on targeted killing, or on the restraints that the U.S. should adhere to as it performs security work for other states. Nor does the United Nations provide adequate opportunities to highlight the voices of law-abiding citizens and legitimate political organizations affected by U.S. policing of ‘battlefield earth’. Redesigning the AUMF should happen in concert with efforts to create international constituencies, conversation, and accountability.