Three days after the September 11, 2001, terror attacks, the House of Representatives passed a bill almost unanimously — 420 to one. Here is the speech of federal representative Barbara Lee, a congresswoman from a California district, making a case against this very broad “Authorization to Use Military Force.” After the speech, we take a look at the 2001 Resolution and the 1973 War Powers Resolution.

Barbara Lee is recognized for 90 seconds.

I am convinced that military action will not prevent further acts of international terrorism against the United States. This is a very complex and complicated matter. Now this resolution will pass although we all know the president can wage a war even without it. However difficult this vote may be, some of us must urge the use of restraint. Our country is in a state of mourning.

Some of us must say: Let’s step back for a moment. Let’s just pause just for a minute and think through the implications of our actions today so that this does not spiral out of control. Now, I have agonized over this vote. But I came to grips with it today, and I came to grips with opposing this resolution during the very painful yet very beautiful memorial service. As a member of the clergy so eloquently said, ‘As we act, let us not become the evil that we deplore.’ Thank you.

2001 AUMF IS VIRTUALLY UNLIMITED PRESIDENTIAL POWER

The Authorization to Use Military Force (“2001 AUMF”) included the following provision:

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.

Note the language. As Representative Barbara Lee claimed, it is very broad in four critical respects.

The “President” decides solely who is responsible. There is no further discussion or check upon his discretion — no due process, no double check — nothing. He decides, and so it is. The White House may take unilateral action against literally any nation, any organization or person — basically anyone, anywhere — who “committed” the attacks. Unilateral action may be extended to those who “aided” or even “harbored” those involved. There was no time limit on the authorization. It is still in effect today, and still being used.

Yet, 420 of the 435 federal representatives voted for this unprecedented grant of war making powers to the White House. Barbara Lee voted against it. The rest did not vote.

1973 WAR POWERS RESOLUTION

The 2001 AUMF bill continues:

Specific statutory authorization.–Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

The 1973 War Powers Resolution is used as cover for this new 2001 AUMF. The War Powers Resolution arose in the aftermath of two major undeclared wars — The Korean War and The Vietnam War. The War Powers Resolution was presented as a limitation upon presidential powers to move troops into battle. The bill passed overwhelmingly and Congress overrode president Richard Nixon’s veto.

In fact, the War Powers Resolution authorized the White House to send troops into battle without congressional approval, defying the War Powers Clause of the Constitution which states quite simply, “The Congress shall have Power … To declare War,…” Congress took upon itself the task of describing in judicial terms what the Constitution means — the very job that the Supreme Court is supposed to do.

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

In reality, the War Powers Act extends White House power to send troops into battle in emergency situations without consulting Congress. Congress gave away its power to commit troops of war to the White House permanently.

In court challenges to the War Powers Resolution, federal judges have determined that the issue is not “justiciable” — courts simply will not decide these cases. The Supreme Court has refused to even look at the Resolution.