The Case for Congress Ending Its Authorization of the War on Terror

U.S. troops will soon leave Afghanistan. Al-Qaeda is in shambles. What reason is there for Congress to abdicate responsibility for declaring war?
One of the last U.S. military convoys departs Iraq and enters Kuwait in December 2011. (Caren Firouz/Reuters)

Last month, I argued that the time has come for Congress to repeal, or "sunset," its sweeping "Authorization for Use of Military Force" (AUMF) enacted just three days after the Twin Towers fell on September 11, 2001. The legislative "blank check" given to the executive branch to wage the War on Terrorism -- a measure enacted while fires at the World Trade Center and Pentagon were still smoldering -- has been, as diplomats used to say, "overtaken by events."

This morning, 4,288 days after the AUMF was enacted, Rep. Adam Schiff, a California Democrat and member of the House Permanent Select Committee on Intelligence, introduced legislation in Congress to sunset the measure on December 31, 2014, a date chosen to coincide with the withdrawal of American combat troops from Afghanistan. The proposal is a serious bit of business and warrants timely and serious consideration on Capitol Hill. Here is the link to Schiff's measure so you can read it for yourself.

Thankfully, the bill is brief (as was the original AUMF!) but there are three provisions in it in particular which struck me. Paragraph 9 states:

Intelligence experts now describe al Qaeda's core as largely decimated, and Director of National Intelligence James Clapper told Congress in early 2013, that al Qaeda's core had been so ''degraded'' that it is ''probably unable to carry out complex, large-scale attacks in the West''.

Supporters of sunsetting will argue that statements like these by executive-branch officials prove that the AUMF is no longer necessary in its current iteration -- that it has achieved the goals for which it was enacted. Opponents of sunsetting will argue there is no good reason to tinker with something that's working so well -- al-Qaeda has been largely decimated in part because of the broad language of the 2001 AUMF. Paragraph 10 then goes to the heart of the matter:

Congress never intended and did not authorize a perpetual war.

That's an argument for which sunset opponents have no good answer. Did you think that Congress was authorizing a "perpetual war" back in September 2001? I didn't. Is it good public policy for the national legislature to authorize an endless military conflict which by its very nature (What is terrorism? What is terror?) cannot be succinctly described? Of course not. There is no good reason not to refine the language of this measure to be clear about what authority makes sense for the next 4,288 days. Finally, there is Paragraph 13 of the measure:

Even after the expiration of Public Law 107-40, there is likely to remain the need to defend against specific networks of violent extremists, including al Qaeda and its affiliates, that threaten the United States, and the Congress urges the President to work with the legislative branch to secure whatever new authorities may be required to meet the threat and comply with the Constitution, the War Powers Resolution, and the law of war.

The congressman is doing two smart things. He is protecting legislative power by ensuring there is a new AUMF to replace the one he wants to sunset. And he is directly challenging his Congressional confederates, and the White House, to come up with narrow new legislative language that will both allow America to continue to aggressively root out bad guys while protecting the rest of us (as much as possible) from the sort of executive-branch overreach that many argue has come from the current AUMF.

To get a better sense of the measure, I interviewed Schiff over email this weekend. Here's a transcript of our conversation.

Do you have any Republican support for this measure, either in the Senate or in the House? And give me a sense of the reaction from your fellow Democrats to this proposal -- is the House minority leader in favor of it? What about Senate Judiciary Committee Chairman Patrick Leahy?

I am only now beginning to reach out to members on both sides of the aisle. I believe that a great many Democrats and some Republicans will agree that the present AUMF poorly describes the nature of the current threat against us, and should be repealed or replaced. There is far less consensus on what should follow.

The impulse will be to defer action on the AUMF, because the questions it poses are difficult, but that represents an abdication of Congressional responsibility. I was the first to introduce legislation to provide a level of due process for the detainees at Guantanamo back in 2002, but it took many years -- and many reversals by the courts -- to get Congress to face that issue.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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