There’s a lot of truth to this. Zenko nonetheless supports the repeal of the 2001 AUMF, writing elsewhere that it “must be pursued as it at least brings a rhetorical end to the post-9/11 counterterrorism framework.” But he correctly warns that the impact of its repeal is likely to be limited. The factors that have led the United States to conduct the “war on terror” in the way it has—among them technological changes and sustained public support—will not disappear even if the AUMF does.
Still, there are at least two additional reasons why increased congressional attention to both AUMFs would be a positive development. First, it would be a good thing from a rule-of-law perspective. No matter what your personal opinion is on the current conflict we are waging, you shouldn’t want to see the executive branch pushing ever more strained interpretations of the law in order to make what it’s doing cohere with words written over a decade ago. And you shouldn’t want to see the U.S. government fall into the habit of declaring wars over but keeping their legal authorizing documents on the books, with the potential to be used by a future president for an unknown future conflict. Even if Congress just replaced the 2001 AUMF with one that more clearly authorized everything the executive branch is currently doing, this would be a positive step simply because it’s a healthier procedure for a constitutional democracy to follow.
Second, a robust debate over both AUMFs would work to create political constraints for the president in addition to legal ones. As many others have observed, the most significant barriers to a president’s ability to wage war are political rather than legal. Recall what happened last year when Obama proposed conducting military strikes against Bashar al-Assad’s regime in Syria following Assad’s use of chemical weapons. Obama said in a speech that he believed he possessed “the authority to carry out this military action without specific congressional authorization.” Nevertheless, he stressed, he was also “the President of the world’s oldest constitutional democracy,” and as such he decided to seek the approval of Congress. This decision was surely not inspired by a philosophical stance, but rather by the political constraints under which Obama was operating. These circumstances included the British House of Commons’ rejection of war and the fact that the prospect of intervention appeared to be quite unpopular with the American public. Thus, Obama decided to take the decision to Congress in order to ensure that another branch of government would be politically accountable for the result that ensued. When Congress appeared poised to reject Obama’s request, he seized upon a diplomatic plan proffered by Russia to provide for the removal of Assad’s chemical weapons.
This was an example of a president acting under real political constraints. In contrast, when it comes to the 2001 and Iraq AUMFs, the executive branch has generally been able to operate without constraints. Congress has made this easier by leaving the Iraq AUMF in place and by remaining largely indifferent to the administration’s broad, vague claims about what the 2001 AUMF allows it to do. It is a textbook example of what former senator Jim Webb called the legislative branch’s “abdication” of its role in defense and foreign-policy matters in a cover story in The National Interest last year. The trend that Webb identified is decades in the making. It is not going to be reversed overnight. But a serious reckoning by Congress with what has happened to the legislation it passed would be as good a place as any to start.
Robert Golan-Vilella is associate managing editor of The National Interest.