Although it will be drowned out by Washington's other unfolding political dramas and never pierce the din of the IRS scandal on cable channels, the Senate Armed Services Committee is holding an important hearing today to "receive testimony on the law of armed conflict, the use of military force, and the 2001 Authorization for Use of Military Force" (AUMF). It seems like just yesterday, but it has been 4,262 days now since Congress gave this broadly worded legislative grant of power to George W. Bush, while the fires still smoldered at the World Trade Center site.
The sweeping legislative authority contained in the AUMF -- sanctioning "all necessary and appropriate force against those nations, organizations, or persons" -- has ever since formed the centerpiece of the nation's so-called "war on terror." Executive-branch officials have conveniently cited it as legislative justification for some of the most sweeping power they have yet exercised, from the use of drone strikes abroad to warrantless surveillance to the classification and indefinite detention of "enemy combatants." And the federal judiciary, except in rare cases, has either upheld the broad swath of the law or deferentially rejected on procedural grounds earnest challenges to it brought by civil libertarians. This is largely a matter for the other two branches, the courts have concluded.
You could argue that the "war on terror," at least as it was conceived on or about 9/11, has succeeded and contracted since the Twin Towers fell. Scores of Al Qaeda leaders have been killed or captured, many more Taliban fighters have been neutralized, and America is withdrawing from Afghanistan. But today, despite this progress, our government has sought to broaden the scope of the AUMF -- to have it encompass groups and individuals who could not have been contemplated by lawmakers on September 14, 2001. For example, the White House now argues that the law covers forces merely "associated" with the terror groups identified in the text of the AUMF. And Congress seems to have assented to a broader view.
Unfortunately, the AUMF contains no sunset provision. But it has come up for congressional debate before, many times, in the 12 years since 9/11. Federal lawmakers, flag pins on their lapels, have repeatedly endorsed the broad language contained in the authorization. But now there is a sense, at last, that some lawmakers may be ready to seriously consider restricting the scope of the measure -- to rein in some presidential power. Sen Dick Durbin (D-Ill.) explained to Politico last week why this is so. "None of us, not one who voted for it, could have envisioned we were voting for the longest war in American history or that we were about to give future presidents the authority to fight terrorism as far flung as Yemen and Somalia. I don't think any of us envisioned that possibility."
If lawmakers alter the AUMF to restrict executive branch power and foster judicial and legislative review, it would be a judicious step forward in this ill-defined war against a murky enemy with no evident end in sight. Perhaps the White House and Pentagon could be held more accountable to lawmakers for our nation's emergent drone-strike policy. Perhaps Congress could otherwise narrow the scope of the AUMF to reflect the fact that the United States is much closer to that illusive "tipping point" at which point the "war on terror" becomes a "counter-terrorism effort against individuals" that former Pentagon General Counsel Jeh Johnson mentioned last year in his trenchant speech at the Oxford Union.
But there is a downside to opening up the AUMF to revisions by this Congress. Our current crop of legislators could make it worse. Indeed, even as the war on terror has been altered by the decimation of the 9/11 generation of terrorists, there is in Washington predictable and growing conservative support for expanding the scope of legislative authority for the use of military force -- to make the AUMF broader than it already is. One of the esteemed speakers Thursday, Jack Goldsmith, the former Bush official, advocates that position and will likely make the case for it in public Thursday on Capitol Hill. The editorial board of the Washington Post seems already to have done so, in a piece published Wednesday night.
Change is good -- except when it isn't -- and Thursday's hearing may give us a sense of what sort of change Congress has in mind. Experts disagree on the details and, given the president's broad Article II war powers, about how much legislative authority is necessary to permit the executive branch to smartly wage its war on terror. But there is broad bipartisan agreement that the war on terror today, however it is defined, is very different from the war on terror Congress authorized three days after 9/11.
In a perfect world, the AUMF would reflect those differences and also the bitter experience we've all shared in the 12 years since 9/11. But this isn't a perfect world, and it clearly isn't a perfect Congress, and so it is a better-than-even-money proposition that Congress could do what it has done so often lately -- make a bad situation measurably worse. That's never a good reason for legislative inertia. But it's rarely cause for comfort, either.
This article available online at: