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Repeal Old AUMFs and Salt the Earth

Summary:
For months now, the Trump administration has pursued a “maximum pressure” campaign that—by accident or by design—has brought the United States to the brink of war with Iran. The branch of government with the constitutional power to declare war ought to have the final word here. Lately, however, Trump officials have hinted that Congress has already had its say—nearly 18 years ago, when it authorized war with Al Qaeda and the Taliban.   The 2001 Authorization for the Use of Military Force, passed three days after the September 11 attacks, targets the perpetrators of 9/11 and those who “harbored” or “aided” them. In the intervening years, the 2001 AUMF has been stretched far beyond its original purposes—but the Trump team apparently believes it can be stretched further still. In June we

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For months now, the Trump administration has pursued a “maximum pressure” campaign that—by accident or by design—has brought the United States to the brink of war with Iran. The branch of government with the constitutional power to declare war ought to have the final word here. Lately, however, Trump officials have hinted that Congress has already had its say—nearly 18 years ago, when it authorized war with Al Qaeda and the Taliban.  

The 2001 Authorization for the Use of Military Force, passed three days after the September 11 attacks, targets the perpetrators of 9/11 and those who “harbored” or “aided” them. In the intervening years, the 2001 AUMF has been stretched far beyond its original purposes—but the Trump team apparently believes it can be stretched further still. In June we learned that, in a closed session, Secretary of State Mike Pompeo gave House members “a full formal presentation on how the 2001 AUMF might authorize war on Iran.” Two weeks ago, at a Senate Foreign Relations Committee hearing, administration officials left the door open to that interpretation with an ominous qualifier: “the administration has not to date interpreted [the 2001 AUMF] as authorizing military force against Iran.” Why the caveat? Five different senators pressed for answers, but the State Department legal adviser refused to address “hypotheticals”: “we can’t predict future events.” 

Last Wednesday, the Charles Koch Institute hosted a panel discussion, “Unauthorized? The 2001 AUMF and Iran,” featuring Steve Vladeck, Heather Brandon-Smith, and myself. No question mark necessary, we argued: no good-faith reading of the AUMF could conclude it covers war with Iran in 2019. 

I’d like to amplify a point I made there: this is a line of argument that proved too brazen even for the Bush-Cheney administration, back when the AUMF was young. That should tell us something about how spurious the Trump administration’s position is, nearly two decades later. 

In the summer of 2002, when President George W. Bush was hell bent on taking out Saddam Hussein, anonymous White House lawyers floated the idea that the president already had all the power he needed to go to war without Congress. “Bush Aides Say Iraq War Needs No Hill Vote,” a Washington Post headline blared on August 26, 2002. The president’s legal team had three arguments for that proposition: first was the John Yoo theory that Article II gives the president the “right to start wars.” Second was the equally fantastic claim that the 1991 Gulf War resolution, authorizing George H.W. Bush to liberate Kuwait, still had enough life left in it to authorize his son to take Baghdad over a decade later. The 2001 AUMF came in as an afterthought: the Bush 43 lawyers argued that it “bolstered” their position, though, as the Post noted, “That argument would depend on linking Iraq and al Qaeda.”

At the time, Bush officials were working hard to establish that link in the public mind. Vice President Dick Cheney claimed that 9/11 hijacker Mohamed Atta had met with Iraqi intelligence in Prague five months before the attacks. President Bush insisted that links between Iraq and Al Qaeda were so tight that “on any given day,” Saddam might give WMD to the group for a second 9/11. None of this turned out to be true, but you push for war with the disinformation you have. 

Even so, as the Post story suggests, the Bush legal team rated the 2001 AUMF as their third-best argument, behind the maximalist interpretation of Article II powers and the claim that the Gulf War AUMF authorized regime change in Iraq 11 years after Desert Storm. That’s also reflected in the October 2002 Bush Office of Legal Counsel opinion on authority for the Iraq War. The 2001 AUMF argument gets one paragraph in the 48-page OLC opinion, analysis limited to a conclusory sentence: “Were the President to determine that Iraq provided assistance to the perpetrators of the September 11th attacks, this authorization would apply to the use of military force against Iraq.” 

The Bush-Cheney team was hardly shy about aggressive legal interpretations of the post-9/11 AUMF: they invoked it to justify secret surveillance programs; military imprisonment, without charges, of American citizens on American soil; and other enormities. But, in the end, they decided the 2001 AUMF couldn’t carry the weight of a new war with a country that had nothing to do with the September 11 attacks. While refusing to concede that separate authorization was legally necessary, the administration opted to secure a new AUMF for the Iraq War. 

Nearly 18 years after the 2001 AUMF’s passage, the case that it covers war with Iran is weaker still. The 9/11 Commission Report found “no evidence” that Iran “was aware of the planning for what later became the 9/11 attack.” The Trump administration has no such evidence now, which is probably why Secretary Pompeo keeps pounding the table about an alleged “connection” between Iran and Al Qaeda. It’s a bait and switch tactic designed to reframe the AUMF debate around a standard that’s easier to meet, even if it’s nowhere to be found in the law. 

At the recent SFRC hearing, Sen. Jeff Merkley (D-OR) walked the Trump State Department’s legal adviser through the language of the 2001 AUMF: Did Iran plan, authorize, commit, or aid the 9/11 attack? Did they harbor those who did? Answer: “Not that I’m aware of, Senator.” “Five standards. You just said none of them were met,” Senator Merkley summed up, “And yet you persist in arguing in interpretation of an AUMF that Congress didn’t intend and is not there in the language.” 

The lesson we should draw from all this is that it’s profoundly dangerous to leave old war authorizations on the books. Indeed, as my copanelist Heather Brandon-Smith points out, the Trump administration claims the 2002 Iraq AUMF “authorizes force to address both ‘threats to’ and ‘stemming from Iraq,’” covering military operations in “Syria or elsewhere.” The old saw that “a government bureau is the nearest thing to eternal life we’ll ever see on this earth” could just as easily apply to unrepealed AUMFs. Even if those that look dormant are a potential source of mischief for any president who decides to reanimate them. It’s past time for the two Iraq authorizations and, especially, the 2001 AUMF to go the way of the Gulf of Tonkin Resolution

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