Following the House’s recent historic passage of legislation to repeal the 2001 Authorization for Use of Military Force (AUMF), both the House and Senate may be considering legislation to repeal another AUMF: the 2002 version that authorized war in Iraq.
So what exactly is the 2002 Iraq AUMF, how does it differ from the 2001 AUMF, and why should it be repealed?
What is the 2002 Iraq AUMF?
Congress passed the 2002 Iraq AUMF on Oct. 11, 2002, and President Bush signed it into law five days later. The law authorized the war against Saddam Hussein’s Iraqi regime. It permitted the president to use the armed forces as “necessary and appropriate” to “defend U.S. national security against the continuing threat posed by Iraq” and to “enforce all relevant Security Council resolutions regarding Iraq.” The latter element refers to the purported legal justification for attacking Iraq: that the Saddam Hussein regime was in breach of U.N. Security Council resolutions through its possession of weapons of mass destruction. As the world has since learned, this justification had no basis in fact.
The war – dubbed “Operation Iraqi Freedom” - began on March 20, 2003, and ended Dec. 11, 2011.
How is the 2002 Iraq AUMF different from the 2001 AUMF?
While the 2002 Iraq AUMF only authorized the war against the Saddam Hussein regime, the 2001 AUMF is the authority the executive branch has used to justify all current conflicts, including 41 operations in 19 countries since 2001. It is referred to as a “blank check” for endless global war.
The 2001 AUMF was passed three days after the Sept. 11 attacks. It authorized the president to use “necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”—namely al Qaeda and the Taliban in Afghanistan.
While members of Congress intended this law to be a narrowly tailored authorization, three presidents have vastly expanded its scope. By asserting that the 2001 AUMF applies to “associated forces” of al Qaeda and the Taliban, the executive branch has used it to justify operations against groups and in countries never contemplated by Congress.
In 2014, the Obama administration also extended the 2001 AUMF to cover ISIS, even though ISIS could not qualify as an associated force because it was fighting al Qaeda at the time. Instead, the administration claimed that ISIS was a successor entity to al Qaeda, adding a new category of groups purportedly covered by the law.
If the 2001 AUMF covers current conflicts, how is the 2002 Iraq AUMF being used now?
In 2014, Obama administration spokesperson Caitlin Hayden said that “the Administration supports the repeal of the Iraq AUMF since it is no longer used for any U.S. Government activities.” However, when the administration began its campaign against ISIS, a senior administration official said that while “we’d like to see [the 2002 Iraq AUMF] repealed,” it was also being used as “an alternative statutory basis on which the president may rely for military action in Iraq.”
The Trump administration has continued the “alternative statutory basis” position, claiming in 2018 that the 2002 Iraq AUMF “reinforces” the authority to use force against ISIS in Iraq. However, the Trump administration went one step further, asserting that the 2002 Iraq AUMF authorizes force to address both “threats to” and “stemming from Iraq” and that the law authorizes force not just in Iraq, but in “Syria or elsewhere.”
Why should the 2002 Iraq AUMF be repealed?
Reasons to repeal the 2002 Iraq AUMF are threefold: Firstly, Congress passed it to target Saddam Hussein’s regime. That conflict is long over. Secondly, it’s not needed. The administration admits it is only using the law to reinforce its authority under the 2001 AUMF. Repealing the 2002 Iraq AUMF would have no impact on the ability of the administration to continue carrying out present military operations. Finally, the Trump administration’s assertion that the 2002 Iraq AUMF now authorizes force against “threats to and stemming from Iraq” is both deeply problematic and certainly contrary to what Congress intended when it passed the law.
If the last 18 years of ever-expanding war under the 2001 AUMF have taught us anything, it’s that leaving an AUMF in place, which the executive branch interprets more broadly than those who voted for it, can and will have dangerous consequences. Congress should remove the ability of the administration to further expand the scope of the 2002 Iraq AUMF to justify unforeseen and unauthorized new wars.
Are there any opportunities in Congress to repeal the 2002 Iraq AUMF?
There are currently bills in both the House and the Senate that would repeal the 2002 Iraq AUMF. In the House, Rep. Barbara LeeBarbara Jean LeeHouse progressives call on Biden to end all new fossil fuel permitting Overnight Health Care — Presented by Altria — Dip in COVID-19 cases offer possible sign of hope 'I was one of the lucky ones': Three Democrats recount their abortion stories to panel MORE (D-Calif.) has introduced H.R. 2456. In the Senate, S.J. Res. 13 from Sens. Tim KaineTimothy (Tim) Michael KaineObama gives fiery speech for McAuliffe: 'Don't sit this one out' Biden injects new momentum into filibuster fight Democratic frustration with Sinema rises MORE (D-Va.) and Todd YoungTodd Christopher YoungSenate Republicans raise concerns about TSA cyber directives for rail, aviation The unseen problems in Afghanistan How to fix the semiconductor chip shortage (it's more than manufacturing) MORE (R-Ind.) would repeal both the 2002 Iraq AUMF and the 1991 Gulf War AUMF, passed to authorize a military response to Saddam Hussein’s invasion of Kuwait.
As the administration continues to escalate tensions with Iran and to test out varying legal theories to justify an attack, Congress should step in to finally repeal the 2002 Iraq AUMF. Leaving this redundant law available for abuse by the executive branch could have real and devastating consequences. It’s time to repeal the 2002 Iraq AUMF.
Heather Brandon-Smith is the Legislative Director for Militarism and Human Rights at the Friends Committee on National Legislation and an adjunct professor of law at the Georgetown University Law Center.