Democratic lawmakers are pushing to finally take away the president’s blank check for war in Iraq — something that the Obama and Trump administrations had both tried to prevent.
Congress passed two authorizations for the use of military force, or AUMFs, in the wake of 9/11. The 2001 AUMF authorized war against al-Qaida, while the 2002 AUMF green-lit military action to stop “the threat posed by Iraq.” Two decades later, those laws have been stretched beyond recognition to justify dozens of military operations around the world.
The 2002 AUMF remains on the books, despite the fact that the occupation of Iraq has been over for a decade. Congress came close to repealing the law twice, only to be stopped by the Obama and Trump administrations. But the Biden administration may take a different approach.
“President Biden is committed to working with Congress to review and, as appropriate, to repeal outdated statutory authorizations for use of military force and to replace them with updated statutes,” Department of Defense spokeswoman Jessica Maxwell told Responsible Statecraft. “DoD will work closely with the White House and Congress in conducting this review.”
Biden is also expected to sign an executive order calling for a review of “forever war” counterterrorism operations this month.
Rep. Barbara Lee (D–Calif.) sent a letter to President Biden a day after his inauguration calling for the immediate repeal of the 2002 AUMF and serious reforms to the 2001 AUMF. Several prominent Democrats — including House Intelligence Committee chair Adam Schiff (D–Calif.) and the new House Foreign Affairs Committee chair Gregory Meeks (D–N.Y.) — signed on.
Meeks privately told committee members that AUMF reform would be among his “top priorities,” according to three Democratic staffers who were not authorized to go on the record. One staffer says that Meeks’s broader priority is to “build consensus about how to reassert congressional authority over war powers.”
“You can't just repeal and have no authorization, because there are real threats and missions that need to be done to protect our homeland and our interests abroad,” says Michèle Flournoy, a former Obama administration official and co-founder of West Exec Advisors. “If you wanted to get it right, you would look at both of [AUMFs] together and update it with a single, new, revised AUMF that is appropriate to where we are today and where we anticipate being in the next five years or so.”
However, activists are focused on an immediate repeal of the 2002 AUMF. Taking the authorization for the Iraq War off the books would not disrupt any ongoing military operations — but it could prevent future wars.
Stephen Miles, executive director of the progressive group Win Without War, calls it “the easiest slam dunk for Democrats.”
Last year, the Trump administration used the 2002 AUMF to justify the assassination of Iranian general Qassem Soleimani, as the Iranian commander was in Iraq at the time. In the months leading up to Soleimani’s death, the Trump administration had lobbied Congress against repealing the 2002 AUMF, both publicly and privately.
Killing an Iranian general was “so far beyond what Congress intended when it authorized” the war against Iraqi dictator Saddam Hussein that there is now a “a real effort and an increasing bipartisan push, in particular to repeal the 2002 Iraq AUMF,” according to Heather Brandon-Smith, legislative director of the Friends Committee on National Legislation.
Former President Donald Trump may have pulled the trigger on Solemani, but his predecessor Barack Obama gave him the proverbial loaded gun. In theory, Obama supported reforming the AUMFs, but in practice, his administration and Democrats in Congress were unable to relinquish those war powers.
“The administration came to believe that there needed to be a re-examination and a tightening of the authorization for the use of military force” but “found an inability or unwillingness on [Capitol] Hill to wrestle this issue to the ground and pass new legislation,” says Flournoy, who served as under secretary of defense for policy at the time.
The unwillingness ran both ways, however. When a bipartisan group of senators tried to reform the president’s war powers, the executive branch balked.
U.S. troops were leaving Iraq in 2011, presenting an opportunity to take the 2002 AUMF off the books. After all, the war it authorized was supposedly over.
“It seemed like a real, true no-brainer at the time. We were a couple weeks away from all the troops being out of Iraq,” says Miles, who was then Win Without War’s advocacy director. “You didn't need a war authorization if there were no troops in the country.”
In November 2011, Sens. Rand Paul (R–Ky.) and Kirsten Gillibrand (D–N.Y.) introduced an amendment to the National Defense Authorization Act, or NDAA, that would take the authorization for war in Iraq off the books. The NDAA is a massive annual legislative package that includes authorization for the military budget, and so any amendment, should it be included in the final bill, is guaranteed to pass.
“There was a notion” that a Republican could win the upcoming 2012 presidential election and “undo what Barack Obama had done, which was to bring all the troops out," Miles says. Not only did anti-war groups want to prevent that possibility, but they also saw the 2002 AUMF as the first step towards taking on the broader 2001 AUMF, according to Miles.
Then the Pentagon intervened.
General Martin Dempsey, then-Chairman of the Joint Chiefs of Staff, sent a letter to late Sen. John McCain (R–Ariz.) arguing that the U.S. military still needed the 2002 AUMF for “any limited windup activities normally associated with ending a war.”
Flournoy interprets the letter as a concern with the “retrograde” being “the most dangerous point” in a military mission. U.S. military leaders feared that Iraqi militias could attack retreating U.S. forces, she says.
Joseph McMillan, who served as a principal deputy assistant secretary of defense under Obama, has a slightly different view.
“You don’t like to foreclose on options when you can keep them open,” he explains. “Things in 2011 had wound down in Iraq — or so we thought — but there was an aversion to getting rid of a tool that we might need to take out of the toolbox again.”
Still, McMillan says, “it wouldn’t have been a big deal at the time if the AUMF was repealed.”
Either way, Dempsey’s letter was the nail in the coffin for the effort to pull back those war powers. After McCain read the letter on the Senate floor, the Senate voted 67-30 to maintain the 2002 AUMF.
McMillan and Flournoy both say that they have no firsthand knowledge of who authorized Dempsey’s letter.
Flournoy emphasizes that Dempsey had the authority to advise Congress independently of the administration, and notes that the secretary of defense did not sign onto his letter.
But McMillan is sure that Dempsey would not have acted alone or advised Congress against the wishes of the administration “on a subject like this…except in the most extraordinary circumstances.” He believes that Dempsey was likely serving as a “messenger” for the Obama administration’s position.
Most importantly, the Obama administration did not publicly push back on Dempsey’s letter.
Dempsey did not respond to an email request for comment. Neither did Jeh Johnson, who was the top lawyer in the Department of Defense during the Obama administration.
“At the time, it wasn’t a huge deal,” Miles says. “I don’t think anybody foresaw a future president using [the 2002 AUMF] as a legal authority to kill Iranians.”
However, Obama soon began to test the limits of both AUMFs. The Islamic State, or ISIS, split off from al-Qaida and swept through Iraq and Syria in mid-2014. The militant group nearly took down the Iraqi government — committing mass atrocities along the way — and political pressure was building to act.
Obama began U.S. military operations against ISIS in August 2014.
The Obama administration took a strange position justifying its action. Officials argued that the war against ISIS was authorized by both the 2001 AUMF against al-Qaida and the 2002 AUMF against “the threat posed by Iraq.” At the same time, they claimed that the administration would like Congress to repeal the 2002 AUMF and pass a more specific anti-ISIS law.
The administration and different members of Congress and the administration proposed various replacement AUMFs. Some in Congress wanted much narrower war powers, while others tried to give the president a veritable blank check to fight Islamist militants. The issue went nowhere, and the war continued on decade-old legal grounds.
Bipartisan momentum began building again after Trump’s election. The war against ISIS wound down in early 2019. Around the same time, the Trump administration began to dramatically escalate economic pressure and military threats against Iran.
The AUMFs began to look like a dangerous blank check. Congress was particularly worried about the 2001 AUMF against al-Qaida, as Trump administration officials had tried to tie Iran to the terrorist group. But lawmakers were also nervous about the 2002 AUMF, which had already been stretched to authorize war against third parties on Iraqi soil.
Democrats on the House Foreign Affairs Committee wrote a letter to the State Department in June 2019 asking whether the Trump administration considered either AUMF permission for war against Iran. The administration responded, ominously, that it had not “interpreted” the law that way “to date.”
Lawmakers then set their sights on taking the 2002 AUMF out of Trump’s hands.
An initial attempt by Sens. Tim Kaine (D–Va.) and Todd Young (R–Ind.) to wipe out the 2002 law went nowhere. Then, Rep. Lee wrote an amendment to that year’s NDAA that would repeal the 2002 AUMF. Her proposal passed the House of Representatives on July 19, 2019.
In response, the Trump administration sprung into action to keep its war making authority intact. In a July 24 hearing, State Department officials reassured senators that the AUMFs did not currently authorize a war with Iran, and asked that the Senate keep both laws on the books.
At least one Republican was suspicious of the administration’s logic.
“The current government [of Iraq] is indeed a strong partner, and we need to do what we can to defend them,” Sen. Young said. “I don't think we need to be prepared to wage war against them, and yet we have this 2002 AUMF on the books.”
Marik String, then the State Department’s top lawyer, responded that the U.S. government was using the law as “extra authority” for anti-ISIS operations, in particular as a defense in lawsuits over detaining suspected ISIS fighters without trial.
Young did not seem convinced.
In September 2019, the long process of NDAA reconciliation began. Negotiators from both parties would have to come to a compromise between the House version — which included Rep. Lee’s amendment — and the Senate’s own draft.
A group of both left- and right-leaning organizations lobbied negotiators to keep Rep. Lee’s amendment repealing the 2002 AUMF. Even the arch-conservative Heritage Foundation, which was arguing against any move to “limit the options of the executive branch” towards Iran, called it “good policy” to repeal the 2002 AUMF.
Meanwhile, the military was quietly pushing back.
Department of Defense attorneys raised the issue of the 2002 AUMF in meetings with the highest-ranking members of Congress’s armed services committees: Jim Inhofe (R–Okla.) and Jack Reed (D–R.I.) on the Senate side, and Adam Smith (D–Wash.) and Mac Thornberry (R–TX) in the House of Representatives.
The military lawyers told lawmakers that they needed to keep the 2002 AUMF in order to “preserve flexibility,” claims FCNL’s Brandon-Smith.
“It's our understanding that this weigh-in from the Pentagon was basically what killed it,” she says. “We had heard that prior to that there was a general consensus that it was a good idea to repeal this law.”
Maxwell, the Department of Defense spokeswoman, declined to comment on “discussions that occurred during the last Administration.”
Spokespeople for Reed, Smith, and Inhofe did not respond to a request for comment. Thornberry left Congress after declining to run for re-election last year, and Rep. Mike Rogers (R–Ala.) took his place on the committee. Rogers’ spokeswoman, Michaela Sunderman, said that she had “no information” on the events in question.
The Trump administration was seeking to “confuse” the discussion around the 2002 AUMF, according to a Democratic staffer on the House Foreign Affairs Committee who spoke on condition of anonymity. The staffer declined to comment on the specifics of conference negotiations, but gave an overview of the Trump administration’s argument.
While the administration was using both the 2001 AUMF as a justification to detain ISIS fighters and the 2002 AUMF as a “fallback” legal argument, administration officials gave off the “impression” that they needed the 2002 AUMF to keep ISIS members behind bars, the staffer said.
The final military budget authorization was released on December 3, 2019. Lee’s amendment repealing the 2002 AUMF had been stripped out. So was another amendment by Reps. Ro Khanna (D–Calif.) and Matt Gaetz (R–Fla.) explicitly banning war with Iran. The law did include some more reporting requirements, but no real changes to the president’s war powers.
Less than a month later, President Trump ordered the assassination of Soleimani.
“Perhaps having the 2002 AUMF off the books would have given them pause,” Brandon-Smith says. “We were right, but it didn’t give us any comfort.”
The overreach by the Trump administration has breathed new life into reform efforts. Rep. Lee’s letter seems to indicate that Democrats now have a unified vision of how to replace the AUMFs. It remains to be seen whether the same forces that stopped war powers reform during the last Democratic administration will prevent it again.
“We did try to do [AUMF reform] a few years ago, and it’s not easy to get to yes,” said Secretary of State Antony Blinken during his confirmation hearing last month. “For some the porridge is too hot. For others the porridge is too cold. And can we get a consensus around what’s just right? But I would be determined and committed to working on that.”