{"id":3872,"date":"2022-02-08T16:16:20","date_gmt":"2022-02-08T16:16:20","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3872"},"modified":"2022-02-08T16:16:20","modified_gmt":"2022-02-08T16:16:20","slug":"20-years-on-why-congress-should-repeal-the-post-9-11-aumfs","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2022\/02\/08\/20-years-on-why-congress-should-repeal-the-post-9-11-aumfs\/","title":{"rendered":"20 Years On: Why Congress Should Repeal the Post 9\/11 AUMFs"},"content":{"rendered":"\n

(Source<\/a><\/em>)<\/p>\n

I. Introduction<\/b><\/p>\n

Three days after the September 11 attacks, the 107<\/span>th<\/span> Congress passed the Authorization for Use of Military Force (\u201c<\/span>2001 AUMF\u201d). Section 2 of the <\/span>2001 AUMF<\/span><\/a> authorized the President of the United States (\u201c<\/span>President\u201d) to <\/span>\u201cuse 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 Stated by such nations, organizations or persons.\u201d <\/span><\/i><\/p>\n

This sixty-word broad authorization served as a <\/span>blank check<\/span><\/a> for the U.S. to conduct military operations in Afghanistan. The counterpart of the 2001 AUMF was the <\/span>2002 AUMF<\/span><\/a>, which authorized military force against Iraq. While the initial focus of the 2002 AUMF was to address the threat posed by Saddam Hussein\u2019s regime, the U.S. used it for the \u201c<\/span>dual purposes of helping to establish a stable, democratic Iraq and of addressing terrorist threats emanating from Iraq<\/span><\/a>.\u201d For example, President Obama used the 2002 AUMF to conduct the <\/span>counter-ISIS military campaign<\/span><\/a> in 2014. Similarly, in January 2020, after invoking both the Article II powers and the 2002 AUMF, <\/span>President Trump authorized an air strike<\/span><\/a> in Iraq, which killed Qassem Soleimani, the commander of the Quds Force. This article argues that Congress should repeal the post 9\/11 AUMFs because they are ambiguous and serve as a perfect example of executive overreach.<\/span><\/p>\n

II. AUMF: A Case of Executive Overreach<\/b><\/p>\n

According to Congresswoman Barbara Lee, the sole dissenter against the 2001 AUMF, \u201c<\/span>the AUMFs have been used by the three successive Presidents to wage war well beyond the scope that Congress initially intended.<\/span><\/a>\u201d Curtis Bradley and Jack Goldsmith have discussed <\/span>five main components<\/span><\/a> in their analysis of how the AUMF is a case of executive overreach. <\/span><\/p>\n

To begin, the 2001 AUMF <\/span>only <\/span>describes<\/span><\/i> the enemies<\/span><\/a> that are the objects of force instead of <\/span>naming<\/span><\/i> them. It <\/span>does not specify which states and non-state actors<\/span><\/a> fall within its ambit. Rather, it authorizes the <\/span>use of all appropriate and necessary force against any nation, organization, or person<\/span><\/a> that is <\/span>connected<\/span><\/i> to the September 11 attacks. The President makes this determination of enemy status <\/span>at his own discretion<\/span><\/a>. As a result, a broad interpretation of the AUMF allows the executive to add <\/span>co-belligerents and associate forces<\/span><\/a> to the list of enemy status without additional congressional authorization. This <\/span>fades the \u201cnexus\u201d requirement<\/span><\/a> and enables the executive to justify the use of force even against those who do not have a connection with the 9\/11 attacks. <\/span><\/p>\n

Next, the purpose of the AUMF is to <\/span>prevent future acts of terrorism by \u201csuch\u201d nations, organizations, or persons<\/span><\/a>. However, without any specified enemy targets, the purpose of the AUMF has shifted to \u201c<\/span>prevent <\/span>any <\/span><\/i>future acts of terrorism by <\/span>any<\/span><\/i> organization<\/span><\/a>.\u201d In other words, the 2001 AUMF <\/span>gives the Executive branch an unfettered war power<\/span><\/a> to wage war against <\/span>anyone, anywhere, at any time<\/span><\/a>.<\/span><\/p>\n

The AUMF also does not restrict the <\/span>methods and resources<\/span><\/a> that the President can employ. It only authorizes the President to <\/span>\u201cuse all necessary and appropriate force\u201d<\/span><\/i>. Once again, the executive interpreted this phrase broadly and conducted <\/span>non-lethal activities, such as surveillance and detention,<\/span><\/a> without any explicit authorization. <\/span><\/p>\n

Lastly, the AUMF does not provide any <\/span>time limitation or a sunset provision<\/span><\/a> stating when the conflict will end. Due to this open-endedness, the AUMF has allowed the United States to be in a <\/span>perpetual state of war<\/span><\/a>. Moreover, the 2001 AUMF <\/span>does not provide any geographic restrictions<\/span><\/a> on its application. The President is authorized <\/span>to use force anywhere he encounters the enemy, including the United States<\/span><\/a>. As a result, the President has invoked this power to fight terrorism in <\/span>Afghanistan, Yemen, Somalia, Libya, Niger, Syria, etc.<\/span><\/a><\/p>\n

III. From Youngstown to Hamdi<\/b><\/p>\n

The <\/span>presidential abuse of congressionally granted war authority<\/span><\/a> for two decades demands nothing less than repealing the post 9\/11 AUMFs. As stated above, the executive invoked the 2001 AUMF to conduct the <\/span>NSA surveillance program<\/span><\/a> as well as <\/span>detain hundreds of prisoners<\/span><\/a> in the detention facility in Guantanamo Bay. Both the programs, disguised in the name of national security, have resulted in the <\/span>erosion of civil liberties and the rule of law.<\/span><\/a> <\/span><\/p>\n

Justice Jackson\u2019s <\/span>renowned concurrence<\/span><\/a> in the <\/span>Youngstown<\/span><\/i> case<\/span><\/i><\/a> explained the division of authority between Congress and the President in wartime. According to Justice Jackson, the Constitution gave Congress, not the President, the power to limit civil liberties during wartime and \u201c<\/span>courts must rigorously scrutinize congressional meaning before finding such authorization.<\/span><\/a>\u201d However, in the <\/span>Hamdi case<\/span><\/i><\/a>, Justice O’Connor’s plurality opinion and Justice Thomas’ dissent <\/span>failed to apply<\/span><\/a> Youngstown\u2019s \u201crigorous scrutiny\u201d requirement. In <\/span>Hamdi<\/span><\/i>, the issue was <\/span>whether a congressional act authorized the detention of Hamdi<\/span><\/a>, a U.S. citizen designated enemy combatant, within the meaning of the <\/span>Non-Detention Act<\/span><\/a>. The Court, after finding an implicit authorization in the AUMF, held that <\/span>the executive had the authority to indefinitely detain Hamdi<\/span><\/a> and that he <\/span>could not challenge the factual basis of his detention<\/span><\/a> before a federal court. <\/span><\/p>\n

Both Justice O\u2019Connor <\/span>and Justice Thomas <\/span>located Hamdi\u2019s detention in Justice Jackson\u2019s first category<\/span><\/a>, <\/span>i.e., \u201can exercise of authority with full congressional support.\u201d However, merely seeking a congressional authorization does not make the executive\u2019s action <\/span>per se<\/span><\/i> constitutional<\/span><\/a>. The Court in <\/span>Hamdi<\/span><\/i> failed to \u201crigorously scrutinize\u201d the 2001 AUMF. If Justice Jackson would have decided <\/span>Hamdi<\/span><\/i>, he would not have inferred a \u201c<\/span>congressional authorization for a denial of basic liberty from the ambiguous congressional language in the AUMF.<\/span><\/a>\u201d<\/span><\/p>\n

Conclusion<\/b><\/p>\n

All wars must eventually come to an end. On June 17, 2021, the House of Representatives passed Congresswoman Barbara Lee\u2019s bill (<\/span>H.R. 256<\/span><\/a>) to repeal the 2002 AUMF. The White House supported the bill and issued a <\/span>Statement of Administration Policy<\/span><\/a> which noted:<\/span> \u201cthe United States has no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis\u201d.<\/span><\/i> In other words, the 2002 AUMF \u201c<\/span>no longer serves any operational purpose because the deployments and operations carried out under it officially concluded in 2011.<\/span><\/a>\u201d <\/span>With respect to the 2001 AUMF, the White House stated:<\/span> \u201c<\/span><\/i>Furthermore, the President is committed to working with the Congress to ensure that outdated authorizations for the use of military force are replaced with a narrow and specific framework appropriate to ensure that we can continue to protect Americans from terrorist threats.\u201d <\/span><\/i>However, <\/span>a narrower framework would be futile<\/span><\/a> if it does not limit the President\u2019s power to interpret the AUMF broadly. <\/span>To conclude, the post 9\/11 <\/span>AUMFs have been used far beyond their original purpose. Accordingly, the<\/span> Congress should repeal the AUMFs to limit the President\u2019s war powers and <\/span>reclaim their Article I authority<\/span><\/a>. <\/span><\/p>\n\n\n\n

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About the Author: <\/strong>Gursehaj Singh is a dual degree LL.B.\/J.D. candidate at Cornell Law School. He is originally from New Delhi, India. Prior to joining Cornell Law, he attended Jindal Global Law School, where he pursued a bachelor’s degree in business administration and law. He will be joining the New York office of White & Case LLP next year as a 2022 Summer Associate.<\/p>\n<\/div><\/div>\n\n\n\n

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Suggested Citation: <\/strong>Gursehaj Singh, 20 Years On: Why Congress Should Repeal the Post 9\/11 AUMFs<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, February 8, 2022, https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/20-years-on-why-congress-should-repeal-the-post-9-11-aumfs\/. <\/div>\n<\/div>\n
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About the Author: Gursehaj Singh is a dual degree LL.B.\/J.D. candidate at Cornell Law School. He is originally from New Delhi, India. Prior to joining Cornell Law, he attended Jindal Global Law School, where he pursued a bachelor’s degree in business administration and law. He will be joining the New York office of White & Case…<\/p>\n","protected":false},"author":1,"featured_media":3879,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[15,20,21,28,1],"tags":[103,172,598,958,1693],"class_list":["post-3872","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-authors","category-interviews","category-spotters","category-student-blogs","category-uncategorized","tag-afghanistan","tag-aumf","tag-executive-overreach","tag-libya","tag-yemen"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3872","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3872"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3872\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/3879"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3872"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3872"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3872"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}