In a May 2013 speech at the National Defense University, President Obama took aim at the “AUMF”—the open-ended Authorization for Use of Military Force Congress enacted one week after 9/11 to empower the United States to go after those responsible for the attacks. As he explained, the 9/11 AUMF has largely outlived its purpose:
“The Afghan war is coming to an end. Core al Qaeda is a shell of its former self … [I]n the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”
Thus, he explained, “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further.”
This morning, President Obama finally submitted his own proposed AUMF for the conflict against the Islamic State in Iraq and the Levant (ISIL, also known as ISIS), ending months of speculation over whether the administration would offer its own text – and, if so, the form it would take. But while the president’s bill is an important step forward for democratic accountability vis-à-vis the war powers, it says nothing at all about the 9/11 AUMF. The bill’s silence on this point is not just a missed opportunity, but it renders the new bill largely toothless and, in the process, all-but repudiates President Obama’s NDU speech.
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The problems with the 9/11 AUMF have been well-documented. In short, the vague and broad language Congress enacted while Ground Zero was still smoldering has been stretched by the Obama administration to authorize uses of force in theaters and against groups increasingly far removed from al Qaeda and the Taliban in post-9/11 Afghanistan.
What’s more, these expansions in the AUMF have taken place behind closed doors, with little (if any) public disclosure or debate over the targets or locations of U.S. uses of force. Indeed, perhaps the best evidence that the 9/11 AUMF has been stretched beyond its breaking point is the Obama administration’s apparent view that at least some of its operations against ISIL thus far – a group that did not even exist on Sept. 11 and that has affirmatively renounced any relationship with al Qaeda – were authorized by Congress in 2001.
In some ways, the bill the president sent to Congress this morning reflects and incorporates several of the lessons we’ve learned from the 9/11 AUMF. The bill includes a sunset provision – providing that the authorization for the use of force will “terminate” three years after the bill is enacted, unless it is reauthorized. It requires regular reports to Congress on “specific actions taken pursuant to this authorization.” And it repeals the vestigial use-of-force statute Congress enacted in 2002 to authorize military operations against Saddam Hussein’s regime in Iraq.
But so long as the 9/11 AUMF remains on the books, these constraints are little more than hortatory; nothing in the new bill would stop this government (or its successors) from relying upon the 2001 statute—which includes no similar sunset or reporting requirements – to use force against ISIL or any other group that the executive branch (secretly) determines is an “associated force” of al Qaeda or the Taliban.
That’s why a bipartisan group of legal experts – including former officials from each of the last three administrations – have insisted that any proposal to specifically authorize force against ISIL at least address, if not sunset, the 9/11 AUMF. Otherwise, leaving the 2001 statute untouched not only renders an ISIL-specific bill largely beside the point, but it does nothing to end the “forever war” or solve any of the well-established oversight and accountability problems with U.S. war powers today.
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To be sure, Obama did not forget about the 9/11 AUMF. As he explained in a letter accompanying his proposed ISIL statute, “I remain committed to working with the Congress and the American people to refine, and ultimately repeal, the 2001 AUMF. Enacting an AUMF that is specific to the threat posed by ISIL could serve as a model for how we can work together to tailor the authorities granted by the 2001 AUMF.”
But it’s impossible to reconcile this rhetoric with political reality. Given how little appetite there is, or has been, in Congress for revisiting the 2001 AUMF, the only way to “tailor the authorities” granted by that statute would have been as part-and-parcel of a new and more specific use-of-force statute – exactly what the administration has proposed for ISIL. By offering such a measure while saying nothing at all about the 2001 AUMF, the president has not only missed his best chance to live up to the promise of his 2013 speech, but has guaranteed that he’ll repudiate it when – not if – he signs this new bill into law.
Steve Vladeck is a professor of law and the Associate Dean for Scholarship at American University Washington College of Law.