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Biden must repeal 2001 war authorisation act if he wants to end 'forever wars', experts say

The 2001 AUMF was passed just a week after the 9/11 attacks and was used to justify the 2011 assassination of US citizen Anwar al-Awlaki
US Marines keep watch as unseen Afghan National Army soldiers participate in a training exercise in the Afghan province of Helmand on 28 August 2017.
US Marines keep watch as unseen Afghan National Army soldiers participate in a training exercise in the Afghan province of Helmand on 28 August 2017 (AFP)
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Washington

US President Joe Biden needs to repeal the 2001 Authorization for Use of Military Force (AUMF) that was crafted in the days shortly after the 9/11 attacks if he is serious about ending "forever wars", progressive advocates and experts have said.

Last month, the US Senate Foreign Relations Committee advanced a bill that would put an end to the war power authorisations of 1991 and 2002. The Senate has yet to take the measure to the floor for a vote.

While news of the bill was welcomed by progressive Democrats, with Senate Majority Leader Chuck Schumer promising a vote on it by the end of the year, there hasn't been much progress on repealing the wider-ranging 2001 AUMF which gave former President George W Bush overarching powers to wage war against the perpetrators of the 9/11 attacks

The AUMF was passed just a week after 11 September 2001, and gave Bush the authority to wage war and use "appropriate force against those nations, organizations, or persons he determines" were involved in the attacks.

The open-ended and broad nature of the AUMF has allowed successive presidents to prosecute war against a number of groups, including al-Qaeda, the Taliban, al-Shabab, and Islamic State (IS).

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The 2001 AUMF was also used by the Obama administration to kill former al-Qaeda propagandist and US citizen Anwar al-Awlaki in 2011. It has been applied in countries including Afghanistan, Iraq, Syria, LibyaSomalia and Yemen.

Legal experts told Middle East Eye that while efforts to rein in the 1991 and 2002 war power authorisations were a positive development, the 2001 AUMF would likely remain in place in some shape or form.

"There is clear recognition of the need to rein in the use of force, and to bring an end to the endless wars,"  Wells Dixon, a senior staff attorney at the New York-based Center for Constitutional Rights, told Middle East Eye. "And I think the Biden administration does recognise this; some members of Congress do as well.

"But the ability to use force and the ability to use essentially unlimited force under the 2001 AUMF is seductive," Dixon added. "Giving up that power is not something that the administration is going to do very willingly."

The US "war on terror", which the military authorisation played a part in justifying, has led to the displacement of at least 37 million people over the past two decades, according to a report by Brown University last year. It has also killed nearly one million people, including 300,000 civilians.

Replacing the AUMF

The 2001 AUMF passed through Congress with all but one dissenting vote, from Congresswoman Barbara Lee. At the time, Lee said that "military action will not prevent further acts of international terrorism against the United States".

"This was a 60-word authorisation that was a blank cheque," Lee told NPR earlier this week. "It just said the president is authorised to use force in perpetuity, for ever, against any nation, organisation, individual he or she deemed connected to 9/11."

For the past 20 years, there have been multiple congressional efforts to repeal the AUMF, but none have been successful. The latest took place last month, when the House Appropriations Committee passed an amendment - introduced by Lee - that would sunset the 2001 AUMF after a further eight months. However, it is unclear whether the amendment would move further, as attempts to push similar legislation in recent years have been discarded in negotiations with the Senate.

While the Biden administration has said it supports narrowing war authorisations, it hasn't been explicit about the 2001 AUMF and how it should be rewritten.

Senator Chris Murphy noted that there are ongoing efforts, led by fellow Senate Democrat Tim Kaine and Republican Todd Young, to rewrite the law, and the White House has appeared to back those efforts.

In a recent podcast, Murphy said: "You've got this concurrent effort that I'm involved in, but being led by Senator Kaine and Senator Young, to rewrite the 2001 AUMF that has another group of Republicans and Democrats who will likely support it.

'Most members of Congress aren't there yet. They have not been able to envision a non-military alternative'

- Diana Ohlbaum, the Friends Committee on National Legislation

"Congress, I think, is more interested now than ever in correcting it."

Wendy Sherman, Deputy Secretary of State, told the Senate Foreign Relations Committee that the Biden administration is open to a discussion on a reform of the authorisation.

"I think that there is a lot of work to be done... It may be that those kinds of ideas aren’t the right ones, but those are things that we are willing to discuss - as well as other things that the Senate might put on the table," Sherman said.

The comments were vague, however, and there have been no details as to what a new AUMF would look like.

"The Biden administration has signalled a willingness, at least in principle, to consider reforms, or updating the '01 AUMF, but they've not offered much in the way of specifics," Brian Finucane, senior adviser at the International Crisis Group, told MEE.

Finucane said that a worthwhile reform would be the inclusion of a "sunset provision" that would make the AUMF expire after a set period of time, forcing the administration to ask Congress to pass a new one. Another would be the narrowing of the provision that names specific groups that the US can wage military operations against.

Diana Ohlbaum, legislative director for foreign policy at the Friends Committee on National Legislation, noted that even the efforts to reform the law are unlikely to move forward at the moment, due to the lack of political will among members of Congress.

"Most members of Congress aren't there yet," she told MEE. "They have not been able to envision a non-military alternative to endless war and they rely on the idea that we're going to continue carrying out these drone strikes, air attacks and so forth, against a number of groups, such as the Islamic State, forever.

"The problem that we have is that there doesn't seem to be a majority of members of Congress for any option, whether it's completely repealing the 2001 AUMF or for narrowing it."

Ending the 'forever wars'

Biden has openly signalled that it is "time to end the forever wars", and his administration has made several moves in recent months towards this. The US has withdrawn its troops from Afghanistan, announced that it would withdraw troops from Iraq, and said it has a goal of closing the detention centre at Guantanamo Bay by the end of Biden's first term.

The president has also backed the congressional efforts to repeal the 2002 AUMF for the Iraq war, which the administration said "has outlived its usefulness and should be repealed".

Still, as the president moves towards closing the chapter on the "forever war", Finucane said that there could be no end to it while the 2001 AUMF remains in place.

"Leaving this authorisation on the books is an invitation for future executive branches' lawyers to engage in creative interpretation to use these war authorisations for purposes that were never intended."

Ohlbaum said that she and other progressive lobbyists will continue working until the authorisation is repealed.

"We would like to see the 2001 AUMF repealed entirely, with no replacement. We feel that these endless wars are not making Americans or anyone else more safe," she said.

"Once Congress realises that it can do this and that it has the power in it [to do so], and that it has the support of the American people in repealing this, they will continue and move on to the more important [AUMF]. Certainly the pressure from our groups is not gonna let up."