By: John Barringer

Estimated Reading Time: 10 Minutes

The power to declare war is a significant responsibility, and one that must not be taken lightly. The Founding Fathers of the United States of America agreed with this sentiment and sought to change the past ways of engaging in warfare. Previously, monarchs or lone rulers had the power to declare war which ultimately determined the fate of his or her countrymen. To avoid the mistakes of the past and establish the foundation of a government ruled by the will of the people, our Founders decided to give this power to the legislative branch. This was codified in Article I, Section 8 of the United States Constitution which states:

“The Congress shall have Power. . . To provide for the common Defense and general Welfare of the United States…To declare War”

This clear break from the past put the power to declare war with the branch of government that most represented the will of the people. Despite the lofty goals of the authors of the Constitution, it is surprising to find that the US has only formally declared war 11 times in the history of our Nation. More interesting, those 11 declarations of war only spanned five conflicts and included 10 different countries (Figure 1). The last time the US formally declared war was 1942. Clearly, there is a need to revisit the war-making powers vested to the legislative branch. The 2001 Authorization for the Use of Military Force (AUMF) is a place to start. After 17 years of combat fighting global terrorism, Congress needs to uphold its constitutional duty and vote on repealing, replacing, or updating the 2001 AUMF.

Figure 1. Country (War), Date, and House Vote for Congressional Declarations of War

In the immediate aftermath of the terrorist attacks on September 11, 2001, Congress established the 2001 AUMF to fight those groups responsible for the egregious act. A frightened nation was shocked and dismayed that an atrocity of this magnitude could occur on our homeland, and Congress passed the AUMF to give then President George W. Bush the necessary authority to pursue those responsible and prevent future attacks from occurring. The AUMF passed the 107th Congress on September 14th by a House of Representatives vote of 420-1 and a Senate vote of 98-0, with President Bush subsequently signing it into law on September 18th. The specific language of the 2001 AUMF states:

“The 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.” (Read the Full Text here)

As with past AUMFs, the intent was to give the President a defined and narrow scope to execute the duties and responsibilities given to the executive branch to secure the United States. After further inspection of the above excerpt, the intent of the 2001 AUMF was clearly to bring those who were responsible for the 9/11 attacks to justice. Without a clearly defined enemy or state to declare war upon, Congress chose to give the Commander in Chief the authorities necessary to take immediate action. However, many detractors of this AUMF argue it gave the President a “blank check” to wage war across the globe in the name of counterterrorism. Indeed, the Islamic State in Iraq and Syria (ISIS) did not exist in 2001 when Congress passed this authorization, yet the 2001 AUMF is the current legal justification for actions against this terrorist organization.

The passage of the 2001 AUMF did not set any precedents. The 1991 AUMF against Iraq was the legal justification to enter the Gulf War, as was the Gulf of Tonkin Resolution that passed in 1964 which led the US into Vietnam; there was never an official declaration of war for either. While Congress and the President are well within their rights to authorize the necessary laws to protect and defend the United States from adversaries, Congress must fulfill its Constitutional obligation and provide oversight and open-debate with respect to the use of military force.

Congress passed the 2001 AUMF under the 107th Congress and then President Bush. Since its initial authorization, Congressional members have attempted to revisit the 2001 AUMF. Representative Barbara Lee, the lone Representative to vote against the AUMF in 2001, has proposed numerous amendments to end the current AUMF and force Congress to vote on a replacement authorization. One such amendment to reauthorize the 2001 AUMF was approved by the House Appropriations committee in 2017, but ultimately stripped from the final bill prior to the vote. Similarly, Senators Tim Kaine and Bob Crocker proposed a new version of the AUMF in 2018, albeit giving the President more power to wage war and removing Congress even further from their Constitutional duty. While there have been attempts by members of the House and Senate to reaffirm, repeal, or replace the 2001 AUMF multiple times, there has been no meaningful action.

Subsequently, after the invasion of Afghanistan in October of 2001, the Bush Administration and Obama Administration used the AUMF as justification for combat operations 36 times, with President Trump continuing this trend. The most recent accountability of current combat operations conducted under the 2001 AUMF is a letter released in 2017 from the Trump Administration. This document names 17 countries where the US is currently engaged in military operations. Combined with past operations from the Bush and Obama administrations, military operations have occurred in a total of 20 countries (Figure 2) under the 2001 AUMF. The 2017 deaths of four American servicemembers in Niger had many Americans perplexed as to why combat operations were taking place in a remote country in Africa. Furthermore, when questions and concerns surrounding the 2001 AUMF were beginning to form following the deaths in Niger, many Americans were unaware of what this document was and what it authorized the President to do. This is unacceptable in a Constitutional Republic and must be addressed.

Figure 2. Map of the 20 Countries where the US has used the AUMF to engage in counterterrorism operations: Afghanistan, Iraq, Syria, Yemen, Jordan, Lebanon, Turkey, Somalia, Kenya, Djibouti, Libya, Chad, Niger, Cameroon, Nigeria, Georgia, Ethiopia, Eritrea Cuba, and the Philippines

To be clear, this examination of the 2001 AUMF is not making a case to remove American Armed Forces from operations anywhere in the world, nor is it making the case to remain involved in global operations. Simply put, it is suggesting Congress should fulfill its constitutional responsibility and provide the necessary oversight needed in a democratic society. As highlighted above, the purpose for giving the power to declare war to Congress was to ensure a single person could not unilaterally move the Nation towards war. One may ask why our separate branches of government and systems of checks-and-balances does not intervene to correct the problem. This answer can be found in the Supreme Court’s dismissal decision in the case of Smith v Obama. In 2016, Army Captain Nathaniel Smith sued the Obama Administration for conducting military operations against ISIS without Congressional approval. The Supreme Court dismissed the case for a simple reason: “judicial review is inappropriate absent a clear conflict between the political branches…there is no such conflict here.” In summary, the legislative and executive branches are not in debate over the legality of the AUMF, therefore the judicial branch has no means to intervene.

With the 116th Congress session beginning January 3, 2018, only 20 percent of the current members of the House of Representatives were in office for the original vote of the 2001 AUMF. The current authorization is not representative of the American people. Furthermore, a lack of meaningful public debate continues to fuel the general lack of understanding regarding the US military’s campaign against global terrorism. It is imperative that the current Congress provide open, honest, and meaningful debate and allow a vote on the future of the 2001 AUMF and on-going military campaigns across the globe. For starters, rewrite the 2001 AUMF to make it representative of not only the current American voters but also the current threats facing the country.

The calls for a new AUMF have come from political leaders and military leaders, alike. In 2017 the Secretary of Defense and Chairman of the Joint Chiefs testified before the Defense Subcommittee and voiced their support for a new AUMF. It is the duty of all levels of government to ensure our country remains safe from those who wish to do us harm. However, upholding our Constitution and rule-of-law is paramount if we are to promote the foundations of our Nation. As Fredrich Nietzsche famously wrote, “whoever fights with monsters should see to it that he does not become a monster in the process.” The following recommendations are necessary for inclusion into a revised AUMF, and any future Congressional authorizations:

Narrow scope and defined enemy: If we are fighting ISIS, debate an AUMF that clearly lays out the authority to fight ISIS. If we are a fighting Boko Haram, debate an AUMF that clearly lays out the authority to fight Boko Haram, etc. If it is worth an American life to engage in combat, it is worth a public debate and vote in Congress.

Provide oversight: Each AUMF needs to have a yearly review to ensure the executive branch is properly executing the authorities granted, with a bi-yearly vote in Congress. This will ensure adequate oversight is in place and that our elected officials are accountable to the American voter.

End dates are not necessary: There are arguments to include time-lines for operations in AUMFs (i.e., end-dates). This paper does not recommend this addition, as identifying a predetermined end-date could be problematic. However, the oversight recommended above will ensure the conduct of operations are in accordance with the approved guidance.

The ultimate goal for Congress is to ensure the power to declare war does not rest with any one individual, and to ensure the necessary amount of honest debate is taking place when the US decides to put members of its Armed Forces into combat.

After 18 years of continuous warfare under this single authorization, it is long overdue to a have an open and honest discussion in Congress regarding this global conflict. In a speech to the American Society of International Law in 2015 on this very topic, Mr. Stephen Preston said, “Our democracy is at its best when we openly debate matters of national security, and our nation is strongest when the President and Congress are in agreement on the employment of military force in its defense.” I would take that a step further and argue our nation is strongest when the President and Congress are in agreement, and the agreement is a reflection of the will of the people. To the 116th Congress: debate the AUMF, decide on the appropriate forces and resources necessary to secure our Nation, and show the world and the citizens of the United States that our government values transparency, the rule-of-law, and is committed to the Constitution.

Major John Barringer is a student in the Multi-Domain Operational Strategist program at the Air Force Air Command and Staff College. He is a senior navigator and fire control officer (FCO) with more than 2,100 flight hours in the AC-130H, AC-130U, and C-130. Email: jtbarringer@gmail.com

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Department of the Air Force or any organization of the US government.

Further Reading:

Declaration of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, Congressional Research Service

The Power to Declare War, US House of Representatives

The War Powers Resolution of 1973, The Library of Congress

Gulf of Tonkin Resolution, Public Law 88-408

The Case Law Concerning the 2001 Authorization for Use of Military Force and Its Application to ISIS, The Heritage Foundation