Two decades after 9/11, the war on terror is not over — at least on paper.
President Joe Biden — like his predecessors — continues to rely on the rickety legal structure set up more than 20 years ago to justify strikes and military operations around the world.
In recent months, the United States has increasingly been drawn back into a thicket of low-intensity conflicts in the Middle East after Hamas attacked Israel on Oct. 7. Twice this year, the administration cited war on terror era laws to justify strikes against militias affiliated with Iran’s Islamic Revolutionary Guard Corps in Iraq and Syria — threats that have nothing to do with Osama bin Laden or Saddam Hussein.
In other instances, like with the strikes the administration is conducting against the Houthis in Yemen, the administration has simply declared that the president has unilateral power based on his authority as commander in chief.
Those war authorizations “have been stretched beyond recognition in my view,” said Brian Finucane, a former State Department attorney who works at the nonprofit International Crisis Group.
The result has been a growing bipartisan frustration on Capitol Hill about the sharply diminished role Congress plays in matters of war. There is additional concern about leaving old military authorizations on the books that the executive branch can cite at its convenience.
“Guys, did you not anticipate questions about the legal rationale before you came before the subcommittee?” Sen. Todd Young said at a Senate Foreign Relations hearing with two Biden administration officials, the U.S. special envoy for Yemen and a top Defense Department official responsible for the Middle East.
Yet, despite making the occasional gesture toward reform, most lawmakers would rather not take tough votes and take ownership of foreign policy decisions that might end badly.
“There’s been 20 years of dodging responsibility,” Finucane said. Barack Obama’s surprise victory over Hillary Clinton, in part driven by his early and consistent opposition to the Iraq War, cemented the political risks of voting in favor of war. “That helped reinforce the desire by many members of Congress to avoid these hard votes,” he said.
In 2001, Congress passed an authorization for the use of military force against those responsible for 9/11. In 2002, it passed another authorization for the use of military force against Iraq, citing claims that Iraqi dictator Saddam Hussein had chemical and biological weapons. The Senate repealed the 2002 Iraq War authorization last March. But the House has not acted on the bill.
“I’ve advocated that we rethink the AUMFs because I think they’ve, in some respects, become obsolete. I’m not sure they can be applied to conflicts other than Iraq and Afghanistan,” Sen. Richard Blumenthal said.
When Blumenthal had the opportunity last year to vote to repeal the 2001 AUMF, he and 85 of his Senate colleagues demurred. Lawmakers fretted about repealing the law without having any legislation in place to replace it that would allow the U.S. to continue its campaign against modern militant groups.
While many lawmakers have complained about the lack of congressional input in Biden’s actions in Yemen, they have also expressed support for the president’s actions, saying Biden would only need to come to Congress if the hostilities escalated.
“I do agree if you’re talking about extended incursions — extended conflict battle scenarios — then there are war powers [issues] that have to come to Congress. But in terms of a designated key strike for national security reasons? I believe the president is empowered to do that,” Florida Republican Rep. Byron Donalds said.
The White House also relies on a post-Vietnam era law that gives the president limited power to use defensive force in a national emergency. That law requires congressional authorization for ongoing hostilities within 60 days. Finally, executive branch lawyers have argued that the president has authority under the Constitution to take some military actions unilaterally.
Every president in the past two decades has stretched the two AUMFs, which on paper mention only al-Qaida and Iraq. At first, those stretches were defensible. Groups like Islamic State and Al-Shabaab, for instance, were offshoots or associates of al-Qaida, and government lawyers made the case that they could be targeted under the 2001 law.
But today, government lawyers have to squint pretty hard to see the specter of al-Qaida or Baathist Iraq in current conflicts. One count by the Costs of War project at Brown University found that the 2001 AUMF had been cited for military action in 22 countries between 2001 and 2021.
Administrations use various tactics to get around the constitutional requirement that Congress must approve of taking the U.S. into a conflict. Sometimes, administrations cite existing AUMFs. Sometimes, they argue that the U.S. is not actually engaged in hostilities as defined under the law but is, in fact, just lobbing a few missiles.
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At the recent Yemen hearing, those arguments were falling flat, even among Biden’s closest allies.
“We’re losing troops. They’re losing civilian casualties and others. This is hostilities. There is no congressional authorization for them,” Sen. Tim Kaine said.
Sen. Chris Murphy said he would introduce a resolution that would both authorize but limit the scope of U.S. activity in the Red Sea, which he says he supports.
“For the military campaign against the Houthis to continue, I believe that a tailored, time-bound congressional authorization is not just nice to have, it is required — to both authorize and limit the current military operation,” Murphy said. “This debate — if we could have it — would help us understand the power and the limits of the American military might in and around the Red Sea.”
That’s a big if.
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Byron Tau is a reporter at NOTUS. John T. Seward, a NOTUS reporter and an Allbritton Journalism Institute fellow, contributed to this report.