For young people growing up in the U.S. today, war is the norm. News of drone strikes, bomb explosions, and military deployments in countries around the world have become mundane.
Political observers have argued that this type of perpetual warfare is technically illegal, citing the U.S. Constitution and federal law. But for nearly 20 years, Democratic and Republican presidential administrations alike have gotten away with killing foreign citizens by relying on an ambiguous, now-controversial resolution that was passed by Congress three days after the 9/11 attacks.
The War Powers Resolution grants Congress authority to declare war
According to the Constitution, declaring war is the responsibility of Congress. After a rebellion against a king with broad, unchecked powers, the Constitution’s framers were wary of handing over such a grave responsibility to one person alone; instead, they dispersed that responsibility across hundreds of congressional representatives to debate the merits of a potential military conflict and then vote on it.
Alexander Hamilton, a leading proponent for a strong central government, explained the president's limited war-making authority in the Federalist Papers: Whereas the king of Britain had the authority to declare war, he wrote, the new Constitution would give the president of the United States the responsibility of carrying out the war as commander in chief of the military, and “nothing more.”
In reality, however, deliberative war-making has not been the norm since World War II, which was the last time Congress made a declaration of war. The old model — Congress issues a formal, committed, and absolute declaration following a deliberative process and formal vote — didn’t quite fit the United States’ new Cold War military strategy of engaging in proxy military conflicts against Soviet-backed movements in countries throughout the so-called “Third World.”
Beginning largely with the Korean War, U.S. presidents started to deploy the military around the world without congressional authorization to stave off what they feared was growing Soviet influence. During this period, and most consequently for the future of U.S. politics, Democratic and Republican administrations launched devastating bombings and military campaigns in Vietnam, Cambodia, and Laos without any meaningful congressional input.
In response to presidential usurpation of war-making powers, Congress passed the War Powers Resolution in 1973. This new law put several limits on the president’s authority to make war unilaterally, including a provision stating that after a president deploys military forces into conflict, they must notify Congress within 48 hours. Congress then has 60-90 days to declare war or authorize that deployment; if it chooses to do neither, the president is obligated to withdraw the military.
A bill passed after 9/11 gave presidents new cover for military interventions
President Nixon tried unsuccessfully to veto the War Powers Resolution, and subsequent presidents have plainly ignored it. In 1981, Ronald Reagan sent troops to El Salvador, and in 1991, Bill Clinton bombed Kosovo — both without seeking proper authorization from Congress.
But today’s endless wars truly began three days after 9/11. On September 14, 2001, both houses of Congress passed the Authorization for Use of Military Force of 2001 (AUMF), which became law four days later, giving George W. Bush an unambiguous mandate to retaliate against groups and individuals responsible for the attacks on September 11.
Soon after receiving that authorization, President Bush invaded Afghanistan to target al-Qaeda, the group behind the attacks, and the Taliban, the group “harboring” al-Qaeda in Afghanistan. He then quickly expanded the scope of the conflict and the authorization, using it to initiate the global War on Terror, launching military campaigns everywhere, including Georgia, the Philippines, Kenya and Yemen. At the same time, the Bush administration used the authorization to establish a system of indefinite detention at Guantanamo Bay and committed a host of human rights abuses around the world.
The following year, the Bush administration sought a second authorization to fight a new war with Iraq and topple the government of Saddam Hussein. The administration saw regime change in Iraq as a necessary step toward winning its War on Terror, even if the regime’s links to al-Qaeda were nonexistent.
That authorization proved slightly more controversial in Congress — it passed the Senate in a 77-23 vote in October 2002— but it too enjoyed broad bipartisan support. Several high-profile Democratic lawmakers, including Hillary Clinton and Joe Biden, notoriously voted to support the authorization.
Then came 2008, and the election of a young former constitutional law professor and state senator who campaigned for president on his early opposition to the 2002 AUMF. To a war-fatigued America, Barack Obama represented a departure from the Bush administration’s abuses of power and disregard for norms. He was calm, intelligent, measured, and promised unity.
To those who hoped Obama’s “change” meant ending the War on Terror and restoring the rule of law, the early days of his administration were promising. During his first few days in office, he took steps to formally end the CIA torture program, close a sprawling network of secret CIA prisons, and end the detention center at Guantanamo Bay (he ultimately failed on the last).
But over the next year eight years, Obama used the same legal authority as his predecessor — the 2001 AUMF — to justify a dramatic expansion of military force against groups and individuals around the world that had nothing to do with 9/11.
In addition to al-Qaeda and the Taliban, the Obama administration argued that the 2001 resolution authorized military force against “associated forces,” a phrase that had never appeared in the document as approved by Congress and that has not been clearly defined since. With the broad legal authority the administration had granted itself, it launched drone strikes against groups like Al-Shabab in Somalia and other groups in East Africa, including Yemen.
The Obama administration also used the 2001 AUMF as a legal basis for its military operations in Iraq, Syria, and Libya against ISIS, a group that came to prominence more than a decade after 9/11 and is actually an enemy of al-Qaeda. Obama cited as an “alternative statutory basis” for its military campaign against ISIS the 2002 AUMF — the same resolution that he had famously opposed as a state senator a decade earlier.
When Obama expanded the president’s power to start new wars under Bush-era congressional authorizations, he laid a legal precedent for future trigger-happy presidents to build on that legacy. President Trump, who campaigned for president on bringing back the CIA torture program and banning Muslims from entry to the U.S., inherited from his predecessor an expansive interpretation of presidential war-making powers and a near blank check to start whatever wars he desired, as long as the enemy could be tenuously tied to Obama’s “associated forces.”
Despite campaign promises to end the endless wars, Trump picked up where Obama left off, citing the 2001 authorization to continue military campaigns against ISIS in Iraq and Syria, while dramatically increasing the use of drone strikes in Pakistan, Yemen, and Somalia, and undoing the few transparency safeguards the Obama administration had put in place.
At the same time, the Trump administration has further stretched the meaning of the 2002 authorization, a document that refers to the 2003 invasion of Iraq. Most shockingly, administration officials have claimed that the resolution provided legal justification for the drone strike that assassinated Iranian general Qassem Soleimani.
How Congress could help change course
In the wake of 9/11, voicing any opposition to war was characterized as unpatriotic. Two weeks after the attacks, Bush enjoyed an unprecedented 90% approval rating when he told Congress and the world "either you are with us, or you are with the terrorists."
But there was one lone voice of opposition in Congress that day: Representative Barbara Lee (D-CA). As the only member of Congress to have voted against the original AUMF, Lee gave a passionate speech on the House floor before voting against the resolution, and warned her colleagues against “becom[ing] the evil that we deplore.”
She received hate mail, death threats, and [right-wing smears] (https://www.wsj.com/articles/SB122418640015141825) painting her as un-American. But Lee proved to be one of the most prescient voices in American politics, warning at the time that a vote for the 2001 AUMF could lead to “an open-ended war with neither an exit strategy nor a focused target.”
Lee has since championed efforts to repeal both AUMFs. With a volatile President Trump in the White House, her colleagues in the House of Representatives have joined her in voting to repeal both the 2001 and 2002 AUMFs, but neither resolution has passed in the Republican-led Senate.
There’s no guarantee that repealing both AUMFs would end the endless wars, but it would, at the very least, show future presidents that Congress is serious about its role in war-making. A repeal may not end war altogether, but it could make clear what was once obvious: War should be subject to laws, and no one is above the law, especially when it comes to the gravest and most dangerous power the U.S. government has.
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