by Charles Stimson
The Senate voted overwhelmingly, and on a bipartisan basis, last week to repeal the obsolete 1991 and 2002 Iraq Authorized Use of Military Force resolutions by a vote of 66-30.
That is sound policy, as I previously wrote here. It’s time for the House of Representatives to debate the Senate-passed repeal, and while doing so, keep in mind the many reasons why it should repeal these vestigial AUMFs, given the current threat environment.
War Declaration History
One of the most solemn constitutional duties assigned to the legislative branch is the power to declare war, found in Article 1, Section 8, Clause 11 of the Constitution.
It’s a power so profound and consequential that in our nation’s history, Congress has declared war only 11 times in five different conflicts.
In addition to declaring war, Congress has also authorized the use of military force more than 40 times in our nation’s history, from small affairs like the military action against the Barbary pirates off the coast of Africa, to the Sept. 11, 2001, AUMF to go after the terrorists who were responsible for, or aided and abetted, the attacks of 9/11.
Every single one of those war declarations, and all but three of those AUMFs, have been repealed by Congresses once the mission was complete. Think of those repeals as congressional hygiene or good housekeeping, reclaiming war powers given to a president to prosecute and win particular conflicts.
The three that remain are the 1991 and 2002 Iraq AUMFs and the 2001 AUMF for 9/11. Only the 2001 AUMF is needed and relied upon today to conduct military operations against al-Qaeda, the Taliban, ISIS, and associated forces.
Current Congress Has ‘No Skin in Game‘
Most members of the Senate were not in office when the 1991 or the 2002 Iraq AUMFs were passed. The only current members of the U.S. Senate who were there for the 2002 vote are Susan Collins, R-Maine; Dick Durbin, D-Ill.; Chuck Grassley, R-Iowa; Mitch McConnell, R-Ky.; Jack Reed, D-R.I.; Chuck Schumer, D-N.Y.; and Ron Wyden, D-Ore., and only Grassley and McConnell were there for the 1991 Iraq AUMF vote.
Most current members of the 435-seat U.S. House of Representatives were not in the House when the 1991 Iraq AUMF was voted on. In 1991, members of the House included Wyden, Schumer, and Reed, along with Ben Cardin, D-Md., all of whom are now senators.
It’s been 32 years since the 1991 Iraq AUMF was authorized to oust Iraq from Kuwait, and 21 years since the 2002 Iraq AUMF was authorized to remove Saddam Hussein from power and eliminate the threat posed by Iraq. Today, Iraq is our partner in the region and Saddam is dead, yet these two zombie war authorizations remain on the books, tempting any president and his lawyers to creatively use military force under a strained interpretation of these relics.
So, while current members of Congress vote on the yearly National Defense Authorization Act and appropriate funds to support ongoing military operations, only a handful of the 535 members of the House and Senate had a say in whether to authorize the use of military force they are still funding.
Most had no voice or seats at the table, when it mattered most, on whether to exercise their most sober of all responsibilities; namely, whether to authorize the use of military force abroad to protect the nation.
As I wrote here, and as the Biden administration has recently declared in a Statement of Administration Policy, the administration does not rely on the 2002 Iraq AUMF for any of the current military operations against al-Qaeda, the Taliban, ISIS, or associated forces.
The 2001 AUMF, which was passed on Sept. 18 of that year, seven days after the attacks of 9/11, is the only domestic statutory authority we relied on—and rely on today—to capture, interrogate, and detain terrorists.
Although there are only 34 detainees remaining at Guantanamo today, from a total of 779, and no terrorists in detention in Afghanistan, from a total of more than 25,000, the remaining terrorists at Guantanamo are being held as law of war detainees under the 2001 AUMF, which will remain in force after the obsolete and useless 1991 and 2002 Iraq AUMFs are repealed.
Therefore, repealing the 1991 and 2002 Iraq AUMFs will have no effect on their continued detention.
Furthermore, repealing the 1991 and 2002 Iraq AUMFs will not limit us, militarily or otherwise, from conducting operations around the globe to target, capture, disrupt, surveil, or kill—consistent with law of armed conflict and our treaty obligations—the limited class of terrorists who fall under the 2001 AUMF, including al-Qaeda, Taliban, ISIS, or associated forces.
Strong Message to China, Russia
There’s a cost on the global stage to congressional inaction insofar as it relates to the exercise of war powers.
As one national security scholar wrote back in 2015, when Congress decides to do nothing with respect to existing war powers, even as they become more and more obsolete, it has important consequences with respect to the relationship between the legislative and executive branch, ceding power from the former to the latter.
This “meaningful congressional acquiescence” not only alters the equipoise allocated in the Constitution between declaring war (a legislative function) and prosecuting the war (an executive function), it concomitantly messages to other countries that the U.S. Congress is not equipped to—or at least not in the habit of—exercising its war power muscles.
At a time when China is building military bases out of sand spits in the South China Sea, growing its Navy, and eyeing Taiwan, and as Russia digs in further in Ukraine, Congress needs to demonstrate to the world that its members are adept at debating, discussing, and exercising their war powers consistent with their constitutional duty.
President Joe Biden is seen by many of our adversaries as a weak, frail leader. By failing to act, in this case by not reclaiming its war powers, Congress is inadvertently sending a message to others that it’s comfortable ceding its war powers to this president.
As this debate unfolds, some have taken the position that repealing the 1991 and 2002 Iraq AUMFs will relieve the Biden administration of its obligation to protect America.
Sen. Ted Cruz, R-Texas, summed it up best when he argued that any repeal will be “used as an excuse by the Biden administration to roll over and do nothing if and when Iran attacks and murders American soldiers, sailors, airmen and Marines in the Middle East.” While this is a principled and strong argument, it misses the broader point.
Cruz’s amendment to the repeal, which ultimately failed, was designed to say that the 2002 Iraq AUMF was not “independently required” to allow the president necessary actions against Iran because the president has ample authority under Article II of the Constitution to use force to defend America’s interests.
Under Article II of the Constitution, the president has capacious authority to defend the interests of the United States, including the ability to use the military to defend the country.
The mullahs in Iran, members of the Chinese Communist Party, and Russian President Vladimir Putin are watching to see if Congress, not this president, takes its war powers seriously, and reclaims that power by repealing broad grants of authority to the president that are no longer needed.
If it does nothing, which is what happened in 2015 when Congress considered amending the 2001 AUMF to include ISIS, it will speak volumes about its seriousness about the threats on the horizon.
Our adversaries have no doubt formed an opinion about Biden. And now they’re waiting to pass judgment on Congress to see if it is strong or weak when it comes to war powers.
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Charles “Cully” Stimson is a leading expert in national security, homeland security, crime control, immigration, and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies.
Photo “U.S. Capitol” by Andy Feliciotti.
