In a surprising development on Thursday, Rep. Barbara Lee, D-Calif., successfully won committee passage for an amendment repealing the Sept. 18, 2001 authorization of military force.
That AUMF authorized the president to take action against al Qaeda and state sponsors of its terrorism, such as the Taliban.
Sixteen years later, the AUMF continues to be used as legal justification for counterterrorism operations all over. And that concerns a growing number of Republicans and Democrats on Capitol Hill. They believe that too much time has passed since 2001, and that a new AUMF is needed to confront terrorist threats in 2017.
I have conflicting feelings about this one. For one, I'm convinced the president has significant latitude to conduct short term or short notice military operations absent congressional authority. Article 2 Section 2 of the Constitution empowers the president as "the Commander-in-Chief." It is the legal responsibility of the president to take expedient action to protect American lives and interests. The Supreme Court has consolidated this authority, recognizing that effective command is ill-suited to bureaucratic delay.
Were, however, Congress required to authorize every individual use of military force, enemies would gain time and space to strike. A president might also hesitate to take urgent action, fearing after-the-fact armchair generaling. Such a situation would enable al Qaeda and the Islamic State to exacerbate their serious threat to the United States.
I also worry that were Lee's amendment to become law, a new AUMF might not exist. In that situation, the fight against ISIS in Syria or al Qaeda in the Arabian Peninsula would come under question. Trump should demand a new AUMF before signing a withdrawal of the 9/11 AUMF.
Still, I also recognize the need for Congressional oversight. It's clear that the 9/11 AUMF is now stretched in its applicability to the present day.
After all, the text of that AUMF states "That the 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 Sept. 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."
Sept. 11, 2001 was a long time ago. The threat posed by al Qaeda has evolved significantly, and ISIS didn't even exist on 9/11. A new AUMF would clarify the authority to go after the enemies we face today. But it would also send a message to those enemies.
That's because, by authorizing military force against ISIS, the Congress would throw the democratic authority of the people behind that fight. It would clarify with certainty that ISIS is an enemy of the United States, and that ISIS will be destroyed. By specifically identifying ISIS as the enemy, the U.S. might dilute extremist propaganda that claims the U.S. is waging a war against Islam. U.S. diplomats could simply say, "read the AUMF text!"
Ultimately, we'll have to see what happens next. Perhaps Lee's amendment will die on the floor of the House or Senate. Perhaps not. But while her case is not without merit, neither does it lack complexity or risk. We need a serious debate.