Time to fix the AUMF

The AUMF grants the president extraordinary power. The last president used it to justify torture and illegal warrantless surveillance of Americans. This one uses it to justify lethal drone strikes all over the world, including at least one aimed at a U.S. citizen. The Supreme Court said in 2004 that the law authorized the President to detain an American citizen as an enemy combatant without any criminal charges. Last month, Pentagon lawyers said the AUMF might allow the U.S. to enter Syria, on the grounds that the extremist al-Nusra Front there is an “associated force” of al-Qaeda. That was too much for even Sen. John McCain (R-Ariz.), who said the authority “is no longer applicable to the conditions that prevailed” when Congress passed the AUMF in 2001. Sen. Angus King (I-Maine) added that the argument had “essentially rewritten the Constitution,” because it is Congress, not the president, that declares war.

McCain and King are right. The AUMF was meant as a declaration of war against core al-Qaeda and the Taliban – the groups actually responsible for 9/11. These groups, while they still exist, no longer pose a major threat to our homeland. The terror threat we face is diffuse and disorganized: our enemies can carry out local attacks on our interests abroad (such as at our consulate in Benghazi), and as always, we will face “lone wolf” domestic terrorists inside the United States, from the Boston Marathon bombers to extremists who murder abortion doctors. 

But we don’t need to deal with these threats using total war powers: over 500 terrorists have been convicted in regular, civilian federal courts since 9/11 (military commissions have convicted seven).

As Congress considers the annual authorization bill for the Department of Defense, it should revisit the AUMF. Rep. Adam Schiff (D-Calif.) has introduced legislation that would sunset the AUMF at the end of 2014, to coincide with the drawdown from Afghanistan. Rep. John Conyers (D-Mich.) has authored an amendment that would require the executive branch to report to Congress explicitly what groups it thinks are “associated forces” that can be targeted under the AUMF.

This step would be critical, because if we are going to be using military force against terrorists all over the world, everyone can agree we should at least not do it in secret. Additionally, it would also warn innocent civilians against associating with these groups. There must not only be greater transparency about the administration’s drone policy, but more clarity regarding the legal justification and basis for targeted killing.

Basic principles of democracy require, at the very least, that the American people know who we’re at war with. Indeed, Yemeni activist Farea al-Muslimi testified this year at a Senate hearing that the expansive interpretation of the AUMF, particularly regarding the use of drones, empowers extremist groups to use U.S. policy as a recruiting tool.  At this point the AUMF may be doing more harm than good.

War gives a president vast and frightening authority, the kind of power the framers were afraid of when they gave us a Constitution based on separation of powers. Congress, doubtless afraid of being called unpatriotic and soft on defense, has not passed legislation designed to seriously limit or oversee the exercise of executive authority in national security in thirty-five years.

During the president’s counterterrorism speech at the National Defense University last month, he reminded us of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”  President Obama is right that he doesn’t need these powers anymore, and Congress shouldn’t let him keep them.

Taeb is Government Relations manager at the Arab American Institute, and Levey is Arab American Institute Legal Fellow on the AUMF.