The AUMF: A Hydra in Search of a Hercules

Yesterday 205 members of the House, defying the partisan polarization that has recently characterized that body, voted for an amendment limiting the NSA’s blanket  collection of telephone records.  Last week a federal judge appointed to the bench by George W. Bush lit into a government lawyer claiming limitless executive authority to assassinate U.S. citizens in drone attacks. The tide may be turning.  But most heads in the war on terror ultimately spring from one hydra, and that hydra lives: a post-9/11 authorization of force through which Congress ceded an enormous and amorphous swath of power to the President to wage war without end on an enemy without definition. 

Passed as an appropriate expression of post-attack resolve, the “Authorization for the Use of Military Force” was intended to give the President authority to punish the perpetrators of 9/11.  But it was poorly drafted and hastily considered.  It has become a Presidential .007, a license to wage war on terror—which is a tactic, not an enemy, one on which war cannot be meaningfully waged, against which victory cannot be meaningfully achieved and a conflict that therefore cannot be meaningfully closed—rather than what it was plainly intended to be: a warrant to respond to the specific circumstances of 9/11.  That specificity is right there in the authorization:

“[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Three times in that sentence the AUMF confines its scope to those responsible for 9/11, not anyone, anywhere contemplating acts of terrorism against the United States.  But by the time the AUMF makes that move, it has already forfeited the game.

Its preamble’s series of “whereas”statements culminates in this: “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” Translation: “Whereas the President need not read the rest of this document.”

Through that passage, Congress—unanimously in the Senate and with only a single dissenter in the House—purchased stock in the unitary executive theory.  It said in essence that the President did not need the AUMF because the authority it expressly conferred was inherently his.  In constitutional reality the President has no such sole authority.  The President’s plenary “national security” power is a phantom; it simply is not there in the Constitution.  Like most constitutional authorities, the national security power is shared. It entails the war power, which belongs to Congress, the spending power (Congress’ too), military regulations (again) and other areas of policy that are not the President’s alone to decide.

Yet in a rhetorical preamble that it is a reasonable bet most members did not bother to read before endorsing, Congress ceded its institutional rights, to say nothing of its responsibilities, in the national security arena.  Meanwhile, the statutory provisions of the AUMF leave it solely to Presidential discretion to define the enemy, not just what force is appropriate but whether force is appropriate, and for how long it is appropriate too.

James Madison would have recognized this as what it is: an executive conflict of interest. Presidents acquire extraordinary powers in times of war, and opportunities for extraordinary glory. Given the power to define war’s scope, they are unlikely to do so narrowly.  “It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle,” Madison wrote as Helvidius.  “The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.”

It is little wonder, then, that an authorization so vaguely drafted has been used to justify a vast range of powers from the war in Afghanistan, for which it was plainly intended, to, over a decade later, a continuing campaign of drone strikes not obviously related to 9/11 except insofar as they target franchises of the responsible organization, to indefinite detention at Guantanamo Bay, and, yes, to warrantless spying.  The Bush Administration argued it did not need legislative or judicial authority for warrantless wiretapping; it was all there, they said, in the AUMF.

This is enough. The AUMF is a license for limitless war and the limitless Presidential power that attends it.  Two months have passed since President Obama invited Congress to modify it.  There are no signs of the promised “engagement” on that topic.  The time has come for the reassertion of a Congress that has, for more than a decade—indeed, for several—participated in its own emasculation.

This is the season. The war in Afghanistan is winding down. The leadership of al-Qaeda has been decimated.  Yet snooping, drone attacks, indefinite detention and the hydra that ultimately gives rise to them all—the AUMF—live.   The question is who, given the indolent popularity of such bromides as the “war on terror,” will be our Hercules.