The Terror Authorization

The History and Politics of the 2001 AUMF

S. Murray

• Publisher: Palgrave Pivot
• Year: 2014
• Print ISBN: 9781137398628
• eBook ISBN: 9781137392770
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

Three days after September 11, 2001, Congress passed an unprecedented authorization of the use of military force (AUMF 2001) that remains in force today. As the theatre of operation against terrorism changes, the applicability and legality of the AUMF 2001 is under increasing scrutiny - giving way to academic discussion over its current status.

1

The AUMF Takes on “A Life of Its Own”

Abstract: Congress authorized the “war” against al Qaeda in a rushed response to the September 11th terrorist attacks. The statute is known as the 2001 AUMF (Authorization for the Use of Military Force) and it was meant to be a temporary grant of powers to allow the president to fight the perpetrators of the attack. This chapter will introduce the idea that the 2001 AUMF has taken on a “life of its own” and could continue to do so unless harnessed by the Congress. A counterterrorism policy framed as “war,” with all the powers that accrue to the executive branch, could become the “new normal.” The chapter introduces (1) how two administrations used the statute, raising the question of whether it is the “new normal”; (2) how the statute is now out of sync with international political realities; and (3) the plan for the rest of the book.

Murray, Shoon. The Terror Authorization: The History and Politics of the 2001 AUMF. New York: Palgrave MacMillan, 2014. DOI: 10.1057/9781137392770.0003.

“I never imagined that the AUMF would still be in effect today,” observed Jane Harman, a self-described “former nine-term member of Congress” who “served on all the major security committees.”¹ Speaking at a Washington, DC think tank in May 2013, Harman continued: “Over time . . . it has taken on a life of its own, and the Executive Branch has used it in ways that no one who voted for it envisioned in 2001.”

The statute Harman is referring to is the 2001 Authorization for the Use of Military Force, which has been invoked by one or both administrations since 2001 as providing authority for the warrantless National Security Agency (NSA) domestic surveillance program, for the indefinite detention of al Qaeda and Taliban operatives and suspects at the prison at Guantanamo Bay and elsewhere, for the creation of military commissions to try al Qaeda terrorists, and for the lethal targeting of al Qaeda leaders around the world and newer associated groups. Also, the George W. Bush and the Barack Obama administrations have publicly invoked the AUMF to deploy troops to countries other than Afghanistan—such as the Philippines, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, and Somalia—and there are investigative journalists’ reports of military forces deployed for counterterrorism operations elsewhere.²

The U.S. Congress hastily voted for the 2001 AUMF just three days after the terrorist attacks on September 11, 2001 (hereafter 9/11) and George W. Bush signed the authorization into law on September 18. Officials had not yet even verified who was behind the attacks. They suspected Osama bin Laden and the al Qaeda network, but the resolution was passed before those facts had been established. President Bush would not name the perpetrators for another six days.³ Lawmakers rushed to give the president tools to fight those responsible. The authorization reads as below:

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.

With these 60 words, the United States entered into an armed conflict—interpreted as a war—with those who attacked the nation (al Qaeda) and with those who harbored the attackers (the Taliban government in Afghanistan).

In their haste, White House officials and lawmakers reached for an old procedure—a use-of-military-force authorization—used against nations. They retrofitted this common practice by adding language about “organizations or persons” to suit the attacks on 9/11. By doing so, they put the United States in uncharted legal and political territory.⁴ As Senator Russell Feingold reflected a year later, “we have never seen this before.”⁵

One legal scholar captures the unforeseen implications: “Throughout history, wars have typically been declared and fought between states and against clearly identifiable combatants, but this new enemy is neither organized by state affiliation nor located in a specific geographic area.”⁶ Because the resolution is aimed at a terrorist network, rather than a state, it has no geographic limitation and no clear temporal stopping point.⁷ The authorization gave the executive branch the latitude to conduct armed conflicts in many unspecified locations around the globe—in Afghanistan to root out Osama bin Laden and punish the Taliban, but also wherever else the al Qaeda network might be operating.

Also, the scope of authority given to the president on September 18, 2001 was left open to interpretation.⁸ Any authorization for war boosts the power of the president, but the extent of that power depends on the situation and the wording of the authorization. Broad authorizations give him enhanced powers to move troops, use force, and detain the adversary. The language of the 2001 AUMF allows the president to use “all necessary and appropriate force”—which is expansive—but it did not confer “all resources of the country” the way that the World War declarations had.⁹

Over more than a dozen years, two very different presidents—a freewheeling “cowboy” and a punctilious constitutional lawyer—have used the 2001 AUMF to justify policies in ways unforeseen by its congressional makers.¹⁰

George W. Bush treated the AUMF as if it were a dose of steroids, meant to make the president stronger, but requiring no follow-up treatments. Essentially, the administration argued that the president could act on his own during wartime with or without an authorization by the Congress, but that the Congress had boosted these powers by passing the 2001 AUMF. Principals within the Bush administration interpreted the statute as giving broad congressional authority to do whatever the administration thought was necessary to conduct the war and without the need to consult further on matters of implementation. They reasoned that the 60 words in the AUMF implicitly authorized specific actions—such as tracking, capturing, detaining, trying, and killing the enemy—that flow naturally from the recognition that the United States was in an armed conflict.

For the first few years after 9/11, the administration boldly acted on its own—eschewing input from the Congress or the courts. The Bush administration unilaterally declared that it could detain suspected terrorists indefinitely in military custody and create military commissions to put them on trial. It snatched targeted people off of city streets and out of airports and “rendered” them to other governments or to a chain of secret CIA-run prisons. It practiced “enhanced interrogation” on al Qaeda captives, using torture in violation of international and domestic law. It kept captives outside of the reach of courts or international organizations such as the International Red Cross. It authorized the NSA to conduct domestic surveillance without bothering with warrants.

By Bush’s second term, many of these early excesses were forced onto a sounder legal footing. As Jack Goldsmith observes, a multitude of political actors—the Supreme Court, the Congress, executive branch lawyers and inspectors general, investigative reporters, lower court judges, advocates from nongovernmental organizations, and so on—“worked together to uncover, challenge, change, and then effectively approve nearly every element of the Bush counterterrorism program” which is why the Obama administration “continued so much of the Bush program as it stood in January 2009.”¹¹

Barack Obama also embraced the 2001 AUMF, viewing it through the eyes of a constitutional lawyer now assuming the responsibility and power of the presidency: he remained tethered to the words in the statute while interpreting them in ways that granted the executive branch latitude. More specifically, the Obama administration stretched its reading of the statute to include “associates” of al Qaeda.

The basic logic was simple: just as the United States had fought cobelligerents in World War II who joined the Axis powers, without formally issuing a new declaration of war on these nations, so too the AUMF extended to organizations that later joined the fight with al Qaeda. The 2001 AUMF, the administration claimed, gave it authority to use lethal force against some emergent extremist Islamic groups, even if those groups had not been directly involved (or, in some cases, had not been even formed yet) in the attacks on 9/11.

The most fundamental continuity between the two administrations is the “war” framework.¹² As legal scholar Rosa Brooks observes, “Under international law and U.S. law, there are different rules for armed conflicts than for ordinary, peacetime situations.”¹³ By sticking with the idea that the United States is at “war” with al Qaeda—supported by the 2001 AUMF—President Obama gave himself powerful tools that would not otherwise have been available. It gave the administration a plausible legal justification, both domestically and internationally, to kill suspected terrorists in countries outside of Afghanistan, said to be part of that armed conflict, as long as it tried to avoid civilian casualties and limit collateral damage. The legal context of “war” also allows the nation to hold suspected terrorists captive, without trial (although with some review as to their rightful status) until the end of the conflict.

The Obama administration continued with many of the Bush administration policies.¹⁴ So the question arises: will the idea and practice of waging “war” on terrorists—undergirded by the 2001 AUMF or its update—become the “new normal”?¹⁵

How long a life?

Just as Rep. Harman observed, the 2001 AUMF has taken on a “life of its own”; it has been used to justify counterterrorism policies far beyond what the Congress intended.¹⁶ The next question is: how long-lived will it be?

Time has surpassed the 2001 AUMF. The end of the U.S. combat role in Afghanistan eliminates the need for continued authorization of that piece of the war. What’s left is the continued battle against al Qaeda operatives who may reside elsewhere, specifically those individuals who attacked the United States on 9/11. Intelligence reports suggest that this goal nears completion too: Director of National Intelligence James Clapper testified to the Congress in January 2012 that “core al Qaida” are “in decline.” The death of Osama bin Laden, and the “death or capture” of other “prominent” al Qaeda leaders, leads the intelligence community “to assess that core al-Qa’ida’s ability to perform a variety of functions—including preserving leadership and conducting external operations—has weakened significantly,” he said.¹⁷ Later that year, John O. Brennan, then serving as Assistant to the President ...

Table of contents

• Cover
• Title
• 1  The AUMF Takes on A Life of Its Own
• 2  The Passage of the 2001 AUMF in Historical Context
• 3  The Bush Administrations Overreach: Some Pushback, but a Lasting Imprint
• 4  Obama and the Armed Conflict with Al Qaeda and Its Associates
• 5  The Case for Repeal and the Forces Favoring the Status Quo
• Bibilography
• Index