15 years later, it’s time for Congress to do its job

By Dan DePetris

Earlier this month on September 11, Americans woke up to commemorate a solemn occasion: the fifteen anniversary of the worst terrorist attack in U.S. history. Here in New York City, people were lined up along the bridges and the parks to observe where the World Trade Center towers once stood. Two giant, blue lights bolted into the sky in remembrance for the victims. Politicians on opposite ends of the spectrum, from Rudy Giuliani and Bill de Blasio to Hillary Clinton and Donald Trump, went to Ground Zero and participated in the grief-stricken ceremony. Like many Americans, I still remember where I was when the second plane crashed into the second tower — as a young middle schooler in history class, I had no understanding of what was going on.

9/11 isn’t the only anniversary that Americans will be marking this month, however. On September 18, 2001, President George W. Bush signed the authorization for the use of military force (AUMF) against Al-Qaeda and the Taliban into law. 

At the time, a week after nearly 3,000 Americans were killed and the entire country was paralyzed by fear and uncertainty, the 2001 AUMF was an act of unity and purpose from America’s elected representatives. The resolution authorizing the president to use military force to retaliate for the attack and defeat an enemy that few Americans heard of passed overwhelmingly in both houses of Congress with only one dissenting vote.

Compared to past war resolutions that are normally marked-up in committee and then debated on the House and Senate floors, the 2001 AUMF was introduced, voted on, and passed by Congress on the same exact day. The speed with which lawmakers got the resolution to President Bush’s desk exemplified the seriousness and determination of the legislative branch to do its part in this new armed conflict. Article I, Section 8 bestows upon members of Congress the power to declare war or approve the president’s use of the U.S. military overseas, and Congress at that time delivered in resounding fashion.

However, a 60-word measure that at the time was crafted to provide President Bush with the authority to wage war on the group that attacked America — and the Taliban regime that harbored that group — has transformed into something else entirely.

Fifteen years later, the Executive branch has used the 2001 AUMF as statutory authority to wage war on terrorist groups that didn’t even exist when the measure was first debated and passed.

Indeed, the Al-Qaeda war resolution has become something that it wasn’t intended to be: a catchall for practically everything that the United States does in the war on terrorism. This, of course, isn’t a new argument. Constitutional scholars from the left and the right have long recognized that the AUMF has been stretched to its breaking point.

Jack Goldsmith of Harvard University and Matthew Maxwell of Columbia University have written that the inclusion of the Islamic State into the AUMF is an illustration of “executive unilateralism,” whereby members of Congress are either left in the dark or too weak to do much about it.  In testimony to the Senate Foreign Relations Committee, Harold Koh — the State Department’s former lead attorney — said that “the 2001 AUMF is not needed as a perpetual legal authority” and that it should be revised or abolished at the appropriate time.  There seems to be a consensus that something — anything — should be done to fix the legal limbo that the United States finds itself in.

The fifteen-year anniversary of the 2001 AUMF should therefore be something other than a special day on the calendar. Instead, it should serve as a reminder to members of Congress that it’s well past time to amend the war resolution currently on the books and tailor it to the current geopolitical environment. 

Which terrorist groups would be included, where the authorization would apply, and what time or force restrictions should be placed into the new war resolution is entirely up to Congress and the President of the United States.

What is just as important as the content of any new AUMF is the fact that the politicians who were elected by the American people would be debating matters of war and peace in open and in full view of the country. Americans haven’t had a full and honest discussion about the extent of the war their armed forces have been fighting every single day for the past decade and a half.

So, on this fifteen anniversary of the 2001 AUMF, here is a call to both the President and Congress: Stop thinking about the politics of casting a vote that may hurt your chances for re-election in the future. Stop viewing war and peace as partisan issues. Get to work and collaborate on a new, tailored use of force authorization. Debate it in committee in full view of the American people. Debate it on the House and Senate floor in full view of your constituents. And pass it. 

The American people and the men in women in uniform who are engaged in the fight are doing their jobs every day. Politicians ought to do theirs as well.

Daniel DePetris is a fellow at Defense Priorities.

This piece was originally published by The American Conservative on September 22, 2016. Read more HERE