Following the House’s passage – on a broadly bipartisan basis – of legislation to repeal the 2002 Authorization for Use of Military Force against Iraq (2002 AUMF), five members of the Senate Foreign Relations Committee (a minority of the minority) are seeking to delay its companion bill’s movement out of committee and onto the Senate floor. In a letter to the Committee’s Chairman Sen. Bob Menendez (D-NJ), the group of five, which notably does not include the Committee’s Ranking Member — Senators Ron Johnson (R-WI), Bill Hagerty (R-TI), Mitt Romney (R-MI), M. Michael Rounds (R-SD), and Marco Rubio (R-FL) — purport to need further study of the issues. Respectfully, that time has long since passed.
Close observers know that such a process could not simply delay, but derail the bipartisan effort underway to remove these authorizations.
1. The idea that repealing the 2002 AUMF needs further study doesn’t hold water. Why? It should be seen for what it is: a dead letter. It should not be looked to as an authority that has any current or future uses.
Congress enacted the 2002 AUMF for the specific purpose of providing then-President George W. Bush domestic legal authority to invade Saddam Hussein’s Iraq. He did so in 2003, in a war that many lawmakers have tried to distance themselves from in the decades that followed because of its tragic impacts for Iraqis, high toll for U.S. service members, and disastrous geopolitical consequences.
In any event, the operative section of the 2002 AUMF is clear. It reads, in full:
(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
It authorized the use of force to protect against the threat posed “by Iraq” — that is a specific named entity, the sovereign nation of Iraq. The title of the Joint Resolution is “Authorization for Use of Military Force Against Iraq Resolution of 2002’’ (emphasis added). To put this in context, this is a force authorization against a specific, named country as the defined enemy that, nearly two decades later, is now a security partner of the United States. Facts on the ground have shifted seismically, and the 2002 AUMF should be recognized as a dead letter. The Senators should not need any further information from the executive branch to be aware of these very clear facts.
2. What about the Senators’ concern that the Obama administration “cited the 2002 AUMF as an authority to intervene against ISIS”?
They are partly right, the Obama administration did cite the 2002 AUMF as an “alternate” domestic legal basis for the counter-ISIS campaign, but never relied on it as a primary authority (citing instead the 2001 AUMF, which the Senators do not mention at all in their letter). But even in 2014, in the midst of the counter-ISIS campaign, the Obama administration still advocated for repeal of the 2002 AUMF. The Senators’ letter also omits any recognition of that point.
To be clear, the argument that the 2002 AUMF provides authority for the United States to use force against ISIS has never been the best view of the law (and like point 1 above, reading the text should make this clear). We should be wary of attempts to use this “alternate” authority argument — which has been elucidated primarily in a footnote in a government document in 2016 and then repeated as though it has long been a mainstream view of that law — to hold up the long overdue repeal of the 2002 AUMF.
The Biden administration, including the president himself and Secretary Austin at the Department of Defense, have said the 2002 AUMF is not wanted or needed for counter-ISIS operations, or any current operations for that matter. While we are strong proponents of Congress having full information and exercising its constitutional oversight role, the question of whether repeal of the 2002 AUMF would have operational consequences has been asked and answered.
3. But what about the Senators’ concern about how “Iran backed militia groups” would react?
The Biden administration is clearly concerned about “Iran-backed militias,” having taken strikes against such groups in Syria at the very outset of Biden’s term. But crucially, the Biden administration did not make the argument that those strikes were authorized by the 2002 AUMF. (And if they had done so, they would have been wrong.) Thus, the idea that those militia groups would view repealing the 2002 AUMF as a step intended to impact the U.S. posture toward them one way or the other doesn’t hold water. They’re just as likely to view a congressional slowdown or derailing of the repeal of the 2002 AUMF — in spite of the White House and Pentagon’s asking for the repeal — in terms that fit their agenda.
More fundamentally, it should go without saying that the potential perception of a potentially hostile group that is expressly not covered by the authorization at issue should not be held up as a reason to derail the repeal process.
4. But didn’t President Trump use the 2002 AUMF for strikes against Iran?
Yes, and that’s exactly why the 2002 AUMF must be repealed. There is no good argument that the 2002 AUMF provided domestic legal authority for Trump’s strike against Soleimani (see here and here). And Congress, under Trump, agreed. As one of us wrote previously:
In the wake of that attack, Congress passed extraordinarily rare bipartisan legislation pursuant to the War Powers Resolution clearly declaring that the 2002 AUMF provided no such authority. Trump vetoed that legislation, making it clear that the only durable solution to ensuring old force authorizations are not abused as legal cover for unforeseen conflicts is repealing them once they have served their intended purpose.
If the Senators truly “support Congress asserting its constitutional role,” they will recognize that the 2002 AUMF is a dead letter, unnecessary for any current operations, and susceptible to abuse so long as it stays on the books. The Senate Foreign Relations Committee majority should recognize these stall tactics for what they are and proceed to markup the legislation.