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?
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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.

What makes you think that now is the right time to push Congress to reevaluate the 2001 AUMF? What specifically has occurred in the past six months, or year, that makes you think so? If anything, it seems to me there is significant Congressional interest in expanded our military presence, notably in Syria.

We will be leaving Afghanistan at the end of 2014. After 13 years of war that departure, when taken in concert with other factors -- the destruction of al-Qaeda's base in Afghanistan, the dispersal, death, and detention of most of its core leadership, the dismantling of its ability to launch large-scale, coordinated attacks in the west, and the rise to the fore of al-Qaeda franchises that did not even exist in 2001 -- this is a logical moment to end the war that was authorized in 2001.

We also have a president who has recognized we face new threats now, and has called for revising and ultimately repealing the AUMF. Without the imperative of a sunset date, I am not confident that Congress will bring any sense of urgency to this task. A sunset date of January 2015 gives us a responsible amount of time to arrive at a consensus for what should follow the present AUMF, and, I hope, a plan to close the facility at Guantanamo which was established in part on the strength of the AUMF.   

As to Syria, I believe that most members of Congress have little appetite for getting militarily involved in Syria, and none support American boots on the ground. In any event, it would be even more legally precarious to construe the AUMF as authorizing action in Syria -- unless it were against al-Qaeda forces aligned with the rebels, so the Syrian civil war offers no justification for retaining the current AUMF. 

Is there any correlation between putting this AUMF to rest and revelations about broad Congressional authority over domestic surveillance? Are you arguing that if Congress isn't going to restrict executive-branch power under the Patriot Act it's time to restrict executive-branch war powers?

I have been working on this bill for several months, so there is no correlation. Article I, Section 8 of the Constitution invests Congress with the power to declare war. It is our most solemn responsibility and one that Congress has had to face twice during my service in the House. To ask the best of our nation's youth to go into combat on our behalf must not be the result of inaction or an overly-expansive reading of existing law.

You say there will be a need, after the 2001 AUMF is expired, for Congress to give the president new authority to engage in the war on terror. Give me a paragraph or two of what you think that new authorization ought to read like.

I have been meeting with a variety of experts to get their opinions on what should follow the current AUMF, if anything. I do not doubt that even after we have left Afghanistan, al-Qaeda, its affiliates, and those it inspires will continue to pose a real threat to the United States and Americans abroad. And I also believe that the president -- any president -- will undertake to do what is necessary to protect the country. As others have pointed out, if there is no further authorization and the president is forced to act on the basis of his Article II powers, it might have the ironic effect of broadening the president's Article II powers. So there are no easy answers here.

The president said recently he would not sign a revision of the AUMF that would expand its scope, and he is right to set down that marker. I believe it would be most productive for the administration to work with Congress over the next 18 months to complete the drawdown of our troops in Afghanistan, close Guantanamo, agree upon the legal framework to protect the country going forward, and end this chapter of our history.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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