Juan Williams, writing for the Hill, had this to say about the application of the 2001/2002 AUMF (Authorization for Use of Military Force) to the Islamic State:
As my friend and Fox News Senior Judicial Analyst Judge Andrew Napolitano has noted, [using the AUMF] is ridiculous because ISIS did not exist in 2001 and 2002, so Congress could not have intended the AUMF to apply to the group by any stretch of the imagination.
How I wish he were right. One major deficiency in the press coverage of the war against the Islamic State (I think when you drop multi-million-dollar munitions on a group, you’re waging war against them, whether you declare it or not) is the lack of discussion about the problems with the law that may (or may not) authorize it. This is a political problem too. Democrats had been calling to repeal the act–until they had control of government. Once in control of the branches of government that have the most influence on foreign policy they ignored the law–until they needed it.
Republicans, who drafted the original law in the aftermath of 9/11, now argue that the president needs Congressional authorization, but won’t actually ask him for it. Sorry guys and gals, you already gave him the authority; you sound a might disingenuous when you complain about him using it.
One major flaw of the AUMF is the section that defines who the U.S. can use lethal force against:
…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 September 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.-[Language maintained in 2002 update]
Who from the Islamic State doesn’t fit this definition? Think of it this way. Imagine Osama Bin Laden hadn’t been captured and killed by the U.S but instead lived and broke with Al Qaeda to join the Islamic State. Would the AUMF not apply to him or his new organization? Abu Bakr Al Baghdadi, the self-proclaimed caliph of the state, was in prison in Iraq for committing terrorist attacks in Iraq for Al Qaeda. That he’s not a member of Al Qaeda now–does that mean he can’t be targeted? This interpretation of the language of the AUMF would make it easy for terrorists to avoid the use of force: change your organization’s name and perhaps you evade the charter of the AUMF.
The problem isn’t whether or not the AUMF allows the president to use lethal force–it does. The problem is that the AUMF gives the executive branch–meaning any president–too much authority in war making, allowing him (or her) to act without direct Congressional authorization or formal declarations of war.
What’s even more disconcerting is that this fundamental Constitutional issue is being ignored because elections are on the way in November. Members of Congress would rather duck and cover than exercise their duties on war making authority and oversight.
Many cities in Syria have been obliterated by the civil war and the war against the Islamic State. Real people, real consequences. Bombing raids might cause more problems than they solve. The U.S. government should take its responsibilities more seriously, and so should we all. The AUMF needs to be revisited, revised, and perhaps repealed. Otherwise, America faces a grim prospect of open-ended war for years, perhaps decades, to come.
Craig Miller is a professor of history at the Pennsylvania College of Technology.