To this point, however, neither group of critics has been successful. At an event earlier this year at the New America Foundation, the Brookings Institution’s Benjamin Wittes explained why. “Everybody hates living under the AUMF,” he said. But, he added, the status quo is also “everybody’s second-worst option.” Human-rights groups worry about the 2001 AUMF being made more permanent, Wittes said, while hawks worry about it being repealed or limited. The White House has expressed a vocal commitment to narrowing and ultimately repealing the AUMF, as Obama outlined in a May 2013 speech at the National Defense University. At the same time, the administration is currently using the AUMF for a whole host of military activities that it perceives as necessary in order to protect American security. The result is an uneasy standoff where almost everybody sees significant flaws in the status quo but simultaneously worries about it being made even worse.

 

TODAY, BOTH AUMFs remain intact. Both have survived multiple challenges and seem unlikely to be repealed anytime soon. The Obama administration has announced that its “combat mission” in Afghanistan will come to a close by the end of this year. It will leave roughly ten thousand troops in Afghanistan in 2015 and about half that in 2016. However, it has also strongly suggested that the “armed conflict” against the Taliban and Al Qaeda under the 2001 AUMF will not end with this withdrawal. The Department of Defense’s general counsel, Stephen Preston, told the House Armed Services Committee this June that he was “not aware of any determination as yet, that with the cessation of the current combat mission at the end of this year that the armed conflicts are determined to be over.”

But even if nothing is likely to change in the immediate future, it’s worth asking: What should we want to see happen? What would be the ideal outcome to work toward, if the current political obstacles can be overcome?

For the 2002 Iraq AUMF, the answer is clear: it should be repealed. It should have been repealed in December 2011 when U.S. troops finished their withdrawal. It’s not a healthy practice for the government to end its involvement in a war but leave the legal authorization for that war in place. The United States may decide that it is wise to use military force in Iraq again at a level that requires an AUMF from Congress. But the order to use military force then shouldn’t be based on a decade-old legal authorization for a fundamentally different war. The decision should be made by the current Congress based on the merits of the case at the time. Washington may not have conducted air strikes in Iraq this June—but the argument that it could use the 2002 AUMF to do so was apparently persuasive to some legal experts and various members of Congress. Since this law has no temporal limitation, it’s entirely possible that a similar series of events could recur, making it an attractive option for a future president to use to bypass the existing Congress. An outright repeal would eliminate this possibility.

Repealing the 2002 AUMF wouldn’t guarantee that the United States would never employ force in Iraq in the future without congressional approval. President Obama (or one of his successors) might choose to act under his Article II powers as commander in chief—and depending on the circumstances, he might be justified in doing so. When it comes to the Iraq AUMF, however, the bottom line is simple: Either the legislation will be used again or it will not. If it is not, it is therefore superfluous and repealing it would have no consequences. But if it is, this would represent a damaging outcome that ought to be prevented.

Likewise, Congress should also revisit the 2001 AUMF—but first, and just as importantly, the executive branch should answer some very basic questions about it. The administration’s secrecy regarding some elemental facts about this war has made it much more difficult to have an informed public debate on how we ought to proceed. Here are the two most prominent examples:

First, there is very little clarity on the question of which of the actions that the United States has been taking in the “war on terror” require an AUMF in order to be done legally, and which could continue without an AUMF on the basis of the president’s Article II powers. At a hearing of the Senate Foreign Relations Committee on May 21, 2014, Senator Tim Kaine raised precisely this issue. He asked the executive-branch witnesses what the effect of repealing the 2001 AUMF would be on America’s ability to do three specific things: to hold prisoners at Guantánamo Bay; to keep military troops in Afghanistan beyond 2014; and to use the Department of Defense to conduct counterterrorist operations against Al Qaeda. The witnesses did not give clear answers to any of these questions. Rather, they suggested that all of these practices could potentially be affected by the absence of an AUMF, but did not say for sure that any of them would be or to what extent. The administration ought to clarify its interpretation of what it would be allowed to do under Article II. Without this knowledge, it is impossible for Congress or the public to assess with any degree of accuracy what the actual impact of any legislative modifications to the AUMF would be.

Second, the administration should abandon its secrecy on the question of whom we are at war with and publicly name the organizations that it considers to be covered under the 2001 AUMF as “associated forces.” Its official rationale for why it must keep this list classified—that such groups would be made more dangerous if it listed them publicly—is completely unpersuasive. For one thing, the administration has already stated that AQAP is among the organizations on the list, which suggests that it was not worried that acknowledging this fact would “inflate” AQAP’s standing and make the group more threatening to the United States. Furthermore, as Jack Goldsmith has pointed out, the government’s argument ignores the cost of keeping the list classified—namely, the damage it does to the U.S. system of democratic accountability. In Goldsmith’s words, it ignores the public’s interest “in knowing against whom, and where, U.S. military forces are engaged in war in its name”—knowledge which “is minimally necessary for the American people to assess the quality, prudence, and necessity of our military efforts.”

Greater clarity from the administration, particularly concerning its interpretation of Article II, would make it easier for Congress to decide what path to take on the AUMF. But Congress should revisit the AUMF even if this information is not forthcoming. In doing so, it should keep in mind the fact that in 2001, Congress initially conceived of the AUMF as a relatively narrow grant of power. Indeed, it specifically did not adopt the proposed language of the George W. Bush administration, which would have given the president the authority to “deter and preempt any future acts of terrorism or aggression against the United States.” This was the right choice then, and it’s the right way for Congress to think about the law now. The AUMF shouldn’t be seen as a blanket authorization to combat all terrorist organizations and individuals, anywhere in the world they might be.

If Congress revises the 2001 AUMF, therefore, it ought to name the groups that the United States is fighting. It should move away from the existing AUMF’s reference to the events of September 11 and instead focus on those groups that it believes to represent the greatest danger today. The most important criterion for determining which organizations qualify should be whether they are believed to have the capability and intention to launch attacks against the American homeland or, to a lesser degree, U.S. diplomatic and military assets abroad. Based on the intelligence community’s public statements, AQAP would be the most obvious candidate for such an authorization right now. Congress might also wish to include others, depending on whether or not the intelligence supports such an assessment. But this approach decidedly should not encompass terrorist groups whose ambitions are primarily localized. And if and when we reach the point in the future where no organizations meet this standard, then it will be time for the 2001 AUMF to be retired as well.

 

SOME MIGHT be tempted to ask: How much does all of this matter? Won’t the executive branch still do whatever it sees as necessary in order to combat terrorism independent of what the law says, and then come up with some legal justification to support it? Speaking at the New America Foundation, the Council on Foreign Relations’ Micah Zenko made a version of this argument when he said:

The words that the president—any president—point to to justify using military force don’t constrain him or her. And if the [2001] AUMF is rewritten or not rewritten, it will not make much operational difference in when any president decides to use military force or not. The capabilities exist in great abundance. These are broadly endorsed and supported by the American people. Over 70 percent of Americans in every poll support all sorts of drone strikes no matter how you define the scope of targeting. Appetite in Congress for changing this is next to nothing; oversight of a lot of these sorts of operations is quite minimal. Every president wants maximum authority and minimum oversight, as does this one, as will all future ones. . . . On the current track, there is a path dependency to this perpetual war.