The Case for the 2001 AUMF’s Continued Existence

By Jonathan Panton, 2023-2024 NSLS Vice President

INTRODUCTION

The 2001 Authorized Use of Military Force (“2001 AUMF”) is a critical tool used by the President to cripple terrorist groups across different countries. The President’s use of force is collectively referred to as the War on Terror. The 2001 AUMF has been used to conduct military operations against Al Qaeda, the Taliban, and associated forces. Many critics argue that the 2001 AUMF should be repealed because it was enacted over twenty years ago, grants overly expansive war powers to the President, and that associated forces include groups that did not exist during the September 11th attacks. The present work contends that the 2001 AUMF should continue to exist and act as legal justification for conducting the War on Terror because the President is acting with Congressional support and broad war powers are necessary for the President to conduct a non-international armed conflict across different countries. However, Congress should also obtain a new AUMF to legally justify using force against the Islamic State of Iraq and the Levant (“ISIL”) since ISIL does not fall within the scope of the 2001 AUMF.

THE SEPTEMBER 11th ATTACKS

The attacks on September 11, 2001, were among the worst moments in our nation’s history. In one day, nineteen hijackers silenced nearly three thousand lives. Similar to the attack on Pearl Harbor, war was thrust upon the United States. While the war in Afghanistan was at first an international armed conflict because the Taliban controlled Afghanistan’s government, that distinction only existed for the first month of the twenty-year war.[1] After the Taliban lost control of Afghanistan’s government in 2001, the war became a non-international armed conflict as Al Qaeda and the Taliban were non-state actors.

POTENTIAL RESPONSES TO THE SEPTEMBER 11th ATTACKS

“The President shall be Commander in Chief of the Army and Navy of the United States…”[2]

President George W. Bush had three legal options to respond to the attacks: formally declaring war, obtaining an AUMF, or acting in self-defense without congressional authorization. However, formally declaring war or unilaterally acting in self-defense without congressional authorization both posed challenges.

First, President Bush could have obtained a formal declaration of war. In Bas, the Supreme Court held that a formal declaration of war was a “perfect war” because all members of one nation declaring war are authorized to use force against all members of the other nation.[3] However, a formal declaration of war is not commonly used as the United States has not formally declared war against a nation since declaring war on Romania in 1942.[4] Moreover, formally declaring war after the September 11th attacks would have proved problematic since the United States was attacked by a non-state actor.

President Bush also could have unilaterally acted in self-defense without congressional authorization.

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…”[5]

UN Article 51 clearly authorized the United States to use force against Al Qaeda because the events of September 11th constituted an armed attack.

Moreover, in the Prize cases, the Supreme Court found that President Lincoln was authorized to order the US Navy to blockade the southern ports and capture vessels at the onset of the Civil War despite lacking congressional approval.[6] The court held that the President may authorize force when war is thrust upon the United States.[7]

However, the President’s authority to respond to the attacks would have been more limited if the President unilaterally acted in self-defense. In Youngstown Sheet & Tube, the Supreme Court held that President Truman’s order to seize the steel mills at the onset of the Korean war was contrary to Congress’ implied will in the Taft-Hartley Act.[8] In Youngstown Sheet & Tube, Justice Jackson’s concurrence found that the President’s power is at its lowest ebb where the President acts against Congressional intent.[9] Furthermore, the President’s authority at its lowest ebb is limited to the President’s Constitutional authority “minus any constitutional powers of Congress over the matter.”[10] Thus, had President Bush unilaterally used force against Al Qaeda, his authority would have been limited to his constitutional authority as Commander in Chief minus Congress’ war powers and the War Powers Resolution.[11]

Additionally, if President Bush had unilaterally acted in the self-defense, the War Powers Resolution would have hindered his ability to conduct the war. The authority provision delineates that the President may only introduce armed forces pursuant to either a declaration of war, specific statutory authorization, or a national emergency.[12] The consultation provision requires the President to consult with Congress before introducing Armed Forces into hostilities and to continue regularly consulting with Congress until Armed Forces are no longer in combat.[13] The reporting provision sets out that the President’s consultation to Congress must take place at least once every six months for as long as armed forces remain in combat.[14]

Finally, on a political level, the absence of explicit congressional support for invading Afghanistan likely would not have garnered enough public support needed for a potentially drawn-out war.

PRESIDENT BUSH’S DECISION TO SEEK AN AUMF

President Bush rightfully chose to obtain an AUMF from Congress to justify invading Afghanistan. Presidents have obtained AUMFs throughout our nation’s history, ranging from the 1798 Quasi War with France to the 2003 Iraq War.[15] Moreover, AUMFs had also been authorized against non-state actors. For instance, President Jefferson obtained an AUMF in 1802 to authorize force against the Barbary Pirates.[16]

Similar to a formal declaration of war, an AUMF involves congressional support of the President’s actions. In Youngstown Sheet & Tube, Justice Jackson found that the highest ebb of Presidential power is when the President acts with either explicit or implied congressional support because the President’s authority would include both the President’s Constitutional authority and powers delegated by Congress.[17] So, as in Youngstown Sheet & Tube, President Bush’s authority to conduct military operations was at its maximum since Congress approved the 2001 AUMF against Al Qaeda and the Taliban.

Also, the War Powers Resolution does not apply to an AUMF because an AUMF involves the President seeking congressional approval prior to using force. The War Powers Resolution was intended to restrict the President from unilaterally using force. So, once Congress approves an AUMF, the War Power Resolution’s restrictions no longer apply.

LANGUAGE OF THE 2001 AUMF

The language of the 2001 AUMF was clearly designed to grant the President broad war powers to conduct the war on terror.

“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.”[18]

In essence, the language in the 2001 AUMF allowed the President to conduct a War on Terror against any terrorist group that attacked the United States on September 11th, any terrorist group that harbored the September 11th attackers, and against all associated forces. While the 2001 AUMF never explicitly names Al Qaeda, the Taliban, or Afghanistan, they are all clearly covered under the act. Al Qaeda operatives committed the September 11th attacks, the Taliban harbored Al Qaeda by granting them safe refuge in Afghanistan, and Afghanistan was a nation controlled by the Taliban. So, the issue is not whether the 2001 AUMF covers Al Qaeda or the Taliban. The issue is which other terrorist groups fall under the scope of the 2001 AUMF.

Associated forces, as covered under the 2001 AUMF, are more ambiguous because the 2001 AUMF does not give the President the authority to use force against any group that commits terrorism or any group merely sympathizing with the Taliban or Al Qaeda. Rather, an entity must satisfy two conditions in order to be an associated force of Al Qaeda or the Taliban. First, the group must be an organized, armed group that has entered the fight alongside Al Qaeda or the Taliban. Second, the group must be a co-belligerent with Al Qaeda or the Taliban in hostilities against the United States or its coalition partners.[19] So, the determination of whether a terrorist group is covered under the scope of the 2001 AUMF depends on whether they are an associated force, not whether the group existed before the September 11th attacks.

TERRORIST ORGANIZATIONS COVERED UNDER THE 2001 AUMF

Al Qaeda in the Arabian Peninsula is covered as an associated force under the 2001 AUMF even though it was not a terrorist organization during the September 11th attacks. Al Qaeda in the Arabian Peninsula entered the fight alongside Al Qaeda since it was created by a 2009 merger between Yemeni and Saudi Al Qaeda groups.[20] Also, Al Qaeda in the Arabian Peninsula is a co-belligerent against the United States since it was responsible for the 2009 attempted bombing of Northwest Airlines Flight 253 (“the underwear bombing.”)[21] Thus, although Al Qaeda in the Arabian Peninsula did not exist during the September 11th attacks, the President is authorized to use force against Al Qaeda in the Arabian Peninsula pursuant to the 2001 AUMF.

Al-Shabaab is also rightfully covered as an associated force under the AUMF even though it too was not a terrorist organization during the September 11th attacks. Unlike Al Qaeda in the Arabian Peninsula, Al-Shabaab is not an affiliate of Al Qaeda. However, Al Shabaab entered the fight alongside Al Qaeda because it is an armed terrorist group that publicly pledged loyalty to Al Qaeda in 2012.[22] Moreover, Al Shabaab is a co-belligerent of Al Qaeda since it declared that the United States is its enemy and Al Shabaab committed numerous attacks against  Americans and U.S. coalition partners throughout Somalia.[23] So, the President is also authorized to use force against al-Shabaab pursuant to the 2001 AUMF.

TERRORIST ORGANIZATIONS NOT COVERED UNDER THE 2001 AUMF

Conversely, the 2001 AUMF is mistakenly used to justify the use of force against ISIL. The justification is used because Osama bin Laden asked Abu Mu’sab al-Zarqawi to merge his terrorist group with Al Qaeda, Zarqawi merged his terrorist group to become Al Qaeda in Iraq, and Al Qaeda in Iraq committed terrorist attacks against American armed forces in Iraq.[24] Further, the argument is that the 2014 split between ISIL and Al Qaeda does not remove ISIL from being an associated force of Al Qaeda since ISIL claims to be the “true executor of bin Laden’s legacy” and that not considering ISIL to be an associated force would allow an enemy force to control the scope of the 2001 AUMF.[25]

However, the 2001 AUMF should not authorize the use of force against ISIL since they are not an associated force of Al Qaeda or the Taliban. Although ISIL is an organized and armed group, they have not entered the fight along with Al Qaeda. Rather, ISIL is a terrorist group that renounced any allegiance with Al Qaeda in 2014 and now fights against Al Qaeda.[26] So, even though ISIL previously was Al Qaeda in Iraq, ISIL now cannot reasonably be considered to have entered the fight alongside Al Qaeda. Similarly, while ISIL has engaged in armed attacks against American service members and considers the United States to be a sworn enemy, that alone is insufficient to constitute being a co-belligerent of Al Qaeda.

Lastly, the notion that the 2014 split between ISIL and Al Qaeda should not remove ISIL from being an associated force is unconvincing for three reasons. First, that belief is contrary to the definition of an associated force as ISIL is neither a co-belligerent of Al Qaeda nor the Taliban. Second, such an interpretation would grant the President powers to conduct a War on Terror inconsistent with Congress’ intent. The purpose behind the 2001 AUMF was to authorize force against terrorist groups fighting with Al Qaeda or the Taliban on the battlefield, not grant the President a blanket power to combat any terrorist organization unrelated to the September 11th attacks. Third, the subjective intent of ISIL potentially attempting to avoid the scope of the 2001 AUMF is irrelevant as to whether the President has legal authority under the statute to use force. Thus, ISIL should not be within the 2001 AUMF’s scope because ISIL is not an associated force.

PROPOSED OPTIONS TO COMBAT ISIL

ISIL is one of the most vicious terrorist groups in the world. ISIL’s central aim is to create an Islamic State and carry out violence against anyone who opposes them, including innocent civilians. The United States has an interest in defending those civilians from ISIL and degrading ISIL’s operational capacity to carry out violence in the future. However, even though the 2001 AUMF does not grant legal authority for the United States to use force against ISIL, the President still retains two options at his disposal to legally combat ISIL.

The President’s first option to legally combat ISIL is for the President to unilaterally act in self-defense. ISIL gained international infamy in 2014 for beheading American journalist James Foley in an internet video entitled “Message to America.”[27] Recently, an affiliate of ISIL, ISIS-K, was responsible for the August 26, 2021 suicide bombing at the Hamid Karzai airport that killed thirteen United States service members.[28] So, the President has the authority to act in self-defense in response to ISIL’s unprovoked attacks against American civilians and service members. However, the President’s authority would be limited under this approach. As in Youngstown Sheet & Tube, the President would be at his lowest ebb of power since he would be acting contrary to Congress’ will laid out by the War Powers Resolution.[29] But, the President instead may seek another option to obtain legal justification to use force against ISIL.

The second option is the President could seek an additional AUMF that explicitly names ISIL and its affiliates. As in Youngstown Sheet & Tube, the President would be at his highest ebb of power to conduct operations against ISIL after obtaining congressional support in a new AUMF. A new AUMF against ISIL would serve two purposes. First, it would provide the President with legal justification to authorize force against ISIL and its affiliates in order to dismantle those organizations. Second, it could help increase public support for military action by dispelling any criticism that the United States has unlimited authority to combat international terrorism under the 2001 AUMF.

OPPOSITION TO THE 2001 AUMF

Nevertheless, the 2001 AUMF should continue to remain in effect. Opposition to the 2001 AUMF’s enactment came from a sole United States Representative: Barbara Lee. Congresswoman Lee opposed the 2001 AUMF because she believed that military action would not stop future terrorist acts against the United States, the war powers given to the President were too broad, and there had not been proper deliberation prior to Congress voting on the AUMF.[30] While Congresswoman Lee’s willingness to express her dissent was admirable, her argument can be refuted in its entirety.

First, the notion that military action would not stop future terrorist attacks is misleading. Before the September 11th attacks, Afghanistan was a country where Al Qaeda freely operated terrorist training camps and did not fear its members being brought to justice while under the comfort of the Taliban’s protection. On the contrary, the result of military action into Afghanistan was that the United States crippled Al Qaeda’s leadership, denied Al Qaeda a safe refuge, and prevented Al Qaeda from successfully conducting another terrorist attack on American soil.

Second, while the President having broad war powers is rightfully a cause for hesitation, these broad powers were necessary to conduct the war in Afghanistan. Congresswoman Lee further elaborated her opposition to the broad powers given to the President by portraying the 2001 AUMF as giving “a blank check for endless war.”[31] On its surface, Congresswoman Lee’s argument may seem convincing because the war in Afghanistan lasted twenty years and the 2001 AUMF authorized military force outside of Afghanistan.[32] However, this argument falls flat because the war in Afghanistan was an unconventional war against multiple non-state actors. It was essential for the 2001 AUMF to give the President broad war powers to protect the homeland because war was thrust upon the United States and the terrorist threat spanned across multiple countries and different terrorist groups. Moreover, the argument that the AUMF gave “a blank check for endless war” fails to recognize the complexities of ending hostilities against a terrorist group. For instance, Japanese envoys signing an instrument of surrender on the USS Missouri was a conventional end to World War II.[33] On the contrary, terrorist groups will not formally surrender to the United States. Instead, terrorist groups can only be defeated if the United States destroys their ability to operate as an organization. Thus, the United States must remain vigilant in continuing to dismantle terrorist networks that fall within the scope of the 2001 AUMF.

Third, Congresswoman Lee’s notion that there had not been proper deliberation prior to Congress voting for the 2001 AUMF ignored historical precedent. Congress voted on the 2001 AUMF three days after the September 11th attacks. While three days may appear to be a short amount of time, Congress had before approved military actions shortly after an attack thrust the nation into war. The most comparable example to the September 11th attacks is the attack on Pearl Harbor, where the Imperial Japanese Navy Air Service killed over 2400 American service members and sunk the USS Arizona.[34] In that instance, Congress formally declared war on Japan one day after the attack.[35] Also, Congress passed the Gulf of Tonkin Resolution eight days after North Vietnamese ships targeted the USS Maddox.[36] So, Congresswoman Lee’s belief that three days was an insufficient amount of time for Congress to approve military action is contrary to prior Congressional authorizations. Thus, while the 2001 AUMF may be imperfect, opposition to the 2001 AUMF’s existence is misguided.

CONCLUSION

The 2001 AUMF was passed over twenty-one years ago with overwhelming congressional support that gave the President his highest ebb of authority under Youngstown Sheet & Tube. In essence, Congress gave the President the ability to conduct a war on terror against the terrorist group who attacked the United States on September 11th and the terrorist group who harbored the September 11th attackers: Al Qaeda and the Taliban. Moreover, the broad sweeping war powers also gave the President legal justification to use force against terrorist groups that constitute associated forces of Al Qaeda or the Taliban. So, the President can lawfully use force against associated forces Al Qaeda in the Arabian Peninsula and al-Shabaab even though neither group existed during the September 11th attacks.

Conversely, the President does not have legal justification under the 2001 AUMF to use force against ISIL since ISIL is neither an associated force of Al Qaeda nor the Taliban. However, because ISIL poses a grave national security threat to the United States, the President should obtain a new AUMF explicitly granting him legal authority to combat ISIL.

Thus, while the 2001 AUMF has its imperfections, it serves as a force for protecting America’s homeland and should continue to exist.

[1] A historical timeline of Afghanistan, PBS, (Aug. 30, 2021), https://www.pbs.org/newshour/politics/asia-jan-june11-timeline-afghanistan.

[2] U.S. Const. art. II, § 2, cl. 1

[3] Bas v. Tingy, 4 U.S. 37, 40 (1800).

[4] H.R.J. Res. 321, 77th Cong. (1942).

[5] U.N. Charter art. 51.

[6] The Amy Warwick, 67 U.S. 635 (1862).

[7] Id. at 659.

[8] Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 640, 656-57 (1952).

[9] Id. at 637.

[10] Id.

[11] U.S. Const. art. II, § 2, cl. 1; U.S. Cont. art. I, § 8, cl. 11.

[12] 50 U.S.C. 33, § 1541(c).

[13] 50 U.S.C. 33, § 1542.

[14] 50 U.S.C. 33, § 1543(c).

[15] Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., 7-5700, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, at 5, 16 (2014).

[16]See Protection of the Commerce and Seamen of the United States Against the Tripolitan Cruisers Act, 2 Stat. 129 [Repealed by P.L. 1028, 84th Congress, 2d Sess (August 10, 1956); 70A Stat. 644, sec. 53(b)].

[17] Youngstown Sheet & Tube, at 635.

[18] S.J. Res. 23, 107th Cong., 115 Stat. 966 (2001).

[19] Pres. Rep. on the Leg. and Pol’y Frameworks Guiding the U.S. use of mil. Force & related Nat’l. Sec. Op., at 4 (2016).

[20] Encyclopedia Britannica, https://www.britannica.com/topic/al-Qaeda-in-the-Arabian-Peninsula (last visited 3/16/2023).

[21] Id.

[22] Encyclopedia Britannica, https://www.britannica.com/topic/al-Shabaab (last visited 3/18/2023).

[23] Pres. Rep. on the Leg. and Pol’y Frameworks Guiding the U.S. use of mil. Force & related Nat’l. Sec. Op., at 5 (2016).

[24] Pres. Rep. on the Leg. and Pol’y Frameworks Guiding the U.S. use of mil. Force & related Nat’l. Sec. Op., at 5 (2016).

[25] Id. at 6.

[26] Id.

[27] Nomia Iqbal, Isis Beatles: ‘Four hours with the militant who murdered my son,’ B.B.C., Aug. 19, 2022.

[28] Matt Seyler, Single suicide bomber killed US troops and Afghans in ISIS-K attack at Kabul airport, Pentagon finds, Feb. 4, 2022.

[29] See 50 U.S.C. 33, § 1541(c).

[30] Sarah D. Wire, Road to vindication for California’s Barbara Lee, the only member of Congress to vote against Afghanistan war, L.A. Times (Aug. 20, 2021), https://www.latimes.com/politics/story/2021-08-20/road-to-vindication-for-barbara-lee-the-only-member-of-congress-to-vote-against-afghanistan-war; Congresswoman Barbara Lee, Statement in Opposition to H.J. Res. 64 (Sept. 14, 2001).

[31] Press Release, Congresswoman Barbara Lee, Congresswoman Barbara Lee observes the 18 years since her no vote on blank check for war authorization (Sept. 14, 2019).

[32] N. Atl. Treaty Org., NATO & Afghanistan (2022).

[33] Instrument of Surrender, Surrender of Japan (1945).

[34] Rob Citino, Remembering Pearl Harbor, Nat’l World War II Museum, at 4, https://www.nationalww2museum.org/war/topics/pearl-harbor-december-7-1941

[35] S.J.Res. 116, 77th Cong. (1941).

[36] H.J. Res. 1145, 88th Cong. (1964).