September 21, 2017

Rethinking the Authorization for the Use of Military Force

Sam Lane

As Congress worked to pass not only the necessary defense appropriations bill, but also the yearly National Defense Authorization Act (NDAA), bipartisan support has emerged to reexamine, and perhaps replace, the 2001 Authorization for Use of Military Force Against Terrorist Act. This bill, passed just 13 days after the September 11 attacks, was intended to authorize the use of United States military force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

This broad language, originally intended for military intervention in Afghanistan, has been used by the Bush, Obama, and now Trump, Administrations to justify American expansion of military force into Afghanistan, Iraq, Syria, Yemen, Georgia, Kenya, Ethiopia, Eritrea, Somalia, and the Philippines. Critics, namely Sen. Rand Paul, argue that the AUMF has far overreached its original intent and reallocates the constitutionally mandated declaration of war power from Congress to the executive branch. Paul recently blocked all procedural motions and amendments on the 2018 National Defense Authorization Act until his amendment to end the 2001 and 2002 AUMF Acts was considered. While his amendment only earned 31 votes, it did force the Senate to reconsider the authorization of war that has led to the now 16-year military occupation of Afghanistan.

Sen. Paul is not alone in his opposition. In May, Sens. Tim Kaine and Jeff Flake introduced a bipartisan AUMF bill against the Islamic State, al-Qaeda, and the Taliban that would grant Congress oversight of which groups can be considered “associated forces” with terrorist organizations. This proposed legislation provides the first serious attempt in years to limit the executive branch’s authority to sanction foreign military intervention and attempts to clearly define the scope of U.S. missions in those countries. It also expires after five years, requiring congressional reauthorization prior to its expiration.

Additionally, in a surprising vote, the House Appropriations Committee approved an amendment introduced by Rep. Barbara Lee (D-CA) that would revoke the 2001 AUMF after eight months unless Congress acted, though the amendment was later stripped out of the reported bill by House Speaker Paul Ryan.

Despite the recent attention to the AUMF, a packed fall Congressional schedule leaves little room for reauthorization efforts this year. On the opposite side of the argument, many senators strongly oppose limiting presidential power during times of war, and remain wary of actions that feel may lead to the politicization of funding for U.S. armed forces.

Sen. Corker, Chairman of the Senate Foreign Relations Committee, has promised to schedule an AUMF debate soon, to bring both sides together in discussion.

In the last 16 years, presidential authority to engage in military conflicts has expanded to essentially bypass Congress’s constitutional role in declaring war in many parts of the world. While no action looks to be on the immediate horizon, it’s not impossible to imagine a coalition of Democrats, perhaps wary of President Trump’s broad military authority, allying themselves with libertarian-leaning Republicans to restrain the executive branch’s authority by utilizing their constitutional checks and balances. This would be a sweeping reclamation of legislative power, returning comprehensive war authorization to Congress for the first time since September 2001. While it remains to be seen if these attempts are realistic, timely passage of the 2018 appropriations acts may be a sign of things to come. If these acts can be passed on time for the first time in 20 years, then perhaps the AUMF process too can return to normalcy.


Sam Lane

Sam Lane is a Scheduler and Research Assistant with Prime Policy Group and a member of the firm’s research team. He assists several lobbyists working in various practice areas by performing in-depth research and monitoring of legislative issues relevant to client interests.