JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England Law - Boston discuss congressional authorization for the use of military force.
Writing in the New York Times, U.S. Senator Tom Cotton argued that President Donald Trump’s decision to kill Iranian military commander Qassem Soleimani was legally justified in three ways: under Article II of the Constitution, the 2001 Authorization to Use Military Force aimed at those responsible for the September 11 attacks, and the 2002 Authorization to Use Military Force Against Iraq. In fact, each of these legal justifications for the killing of Soleimani is suspect. As Ryan Goodman and Steve Vladeck have argued in Just Security, no reasonable interpretation of the 2002 AUMF supports the use of force against Iran or an Iranian citizen in Iraq. And, notwithstanding Cotton’s belief that Article II “provides ample legal basis for” the strike against Soleimani, the administration has yet to explain clearly (at this writing) why Soleimani posed the kind of incipient threat necessary to trigger the president’s inherent authority under Article II to defend the nation and its citizens.
This leaves Cotton – and the president – with the 2001 AUMF. By its terms, this law authorizes the president “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.” Relying upon this language, three successive presidential administrations have claimed the authority to pursue offensive military actions far removed from the Afghan frontier where members of al Qaeda responsible for the September 11 attacks were hiding. Indeed, the 2001 AUMF has been used to justify such operations as the deployment of drone strikes against terrorist suspects located nowhere near Afghanistan; special forces missions in the Middle East and North Africa; and, in 2017, the airstrikes President Trump ordered against targets in Syria.
Liberal executive interpretations of the 2001 AUMF have come under criticism repeatedly in recent years. Following the killing of Soleimani, Representative Joe Kennedy III called for the repeal of the force resolution. His arguments echo those made in 2018 by then-Senator Jeff Flake and Senator Tim Kaine, who sought to revisit the AUMF in light of the lengths to which presidents have stretched its terms. Indeed, back in 2018, writing in The Hill, we supported this position, concluding that “the strongest and most urgent reason to support the effort by Sens. Flake and Kaine is to preserve Congress’s institutional legitimacy when it comes to national security.”
We continue to believe that Congress must assert its constitutional role in national security matters. The Constitution makes clear that the framers contemplated roles for both Congress and the president in determinations whether to use force abroad: Congress has the power to authorize and fund military engagements, while the president, serving as commander-in-chief, directs those forces and their deployment. What the framers did not spell out, of course, is precisely how Congress and the president should operationalize their shared responsibilities—particularly in a world in which threats may come from non-state actors. Practical considerations suggest the president should take the lead, as modern presidents have: the chief executive is possessed of the resources necessary to gather and analyze intelligence, and has the institutional ability to act quickly. On the other hand, the allocation of the war power to Congress suggests the framers understood that the members of the legislature, precisely because they are closer to the people than the occupant of the Oval Office, are positioned both to appreciate the potential human consequences of military action and to serve as an effective check on the executive’s discretion in national security matters.
At the same time, however, Congress – especially today – may well be institutionally incapable of the very kind of decision making that the use of force in all its immediacy requires. Indeed, were Congress to repeal the 2001 AUMF, there is a non-zero possibility that it would be replaced by nothing. Presidents subsequently would see themselves as free to act unilaterally in many instances, relying upon ever-expanding claims of inherent authority under Article II to justify their actions. At least the 2001 AUMF, broad and vague though it may be, provides a textual benchmark by which Congress – and the American people – can assess the validity of a president’s claim to be exercising American military might under its auspices.
In other words, while presidents will no doubt continue to stretch the words in the 2001 AUMF to justify the military actions they deem appropriate, it remains that the text of the force resolution cannot possibly authorize all the actions in which a president might wish to engage. This isn’t just about lawyerly quibbles: no reasonable person would agree that the 2001 AUMF permits, for example, a ground war in Iran based upon Iran’s missile attacks on U.S. positions in Iraq in response to Soleimani’s death. There simply is no logical or temporal connection between the September 11 attacks and these Iranian missile strikes in 2020.
Part of the continuing value of the 2001 AUMF, then, is that it marks the extent to which Congress elected to give the president the discretion to pursue the nation’s anti-terrorism agenda using military force without having to return to Congress for permission to target every “nation, organization, or person he determines planned, authorized, committed, or aided the terrorist attacks.” That kind of authorization made sense in 2001. And the text of the 2001 AUMF indicates that, however capaciously it might be interpreted, there are places and actions it does not reach. Those restrictions are not likely judicially enforceable, but they can be politically potent as means by which Congress and the American people can make determination about whether and when a president has gone too far.
Lawrence Friedman and Victor Hansen teach national security law at New England Law | Boston and are the authors of The Case for Congress: Separation of Powers and the War on Terror.
Suggested citation:Friedman & Hansen, The 2001 AUMF is Better Than Nothing, JURIST – Academic Commentary, Jan. 22, 2020, https://www.jurist.org/commentary/2020/01/lawrence-friedman-victor-hansen-2001-aumf/
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