Congress Must Reclaim War-Making Authority

The House Appropriations Committee unexpectedly passed an amendment to the Department of Defense Appropriations bill last week that would repeal the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 after the 9/11 terrorist attacks. If this effort to revoke the AUMF proves successful, the repeal would effectively limit Donald Trump’s ability to use military force against North Korea, Iran and elsewhere.

In the 2001 AUMF, Congress authorized the president to use military force against groups and countries that had supported the 9/11 attacks. Congress rejected the George W. Bush administration’s request for open-ended military authority “to deter and preempt any future acts of terrorism or aggression against the United States.” ISIS (also known as Daesh) did not exist in 2001.



Rep. Barbara Lee (D-California) introduced the new amendment, tweeting, “GOP & Dems agree: a floor debate & vote on endless war is long overdue.” Lee was the only Congress member to vote against the AUMF in 2001. She said, “I knew then it would provide a blank check to wage war anywhere, anytime, for any length by any president.”

Lee clarified that her amendment would repeal “the overly broad 2001 AUMF, after a period of eight months after the enactment of this act, giving the administration and Congress sufficient time to decide what measures should replace it.”

It remains to be seen whether Lee’s amendment will be defeated in the House of Representatives, as it is opposed by the House Foreign Affairs Committee, which said it “should have been ruled out of order” because the Appropriations Committee lacked jurisdiction over the matter.

The AUMF Should Be Repealed to Constrain Trump’s War-Making



Tensions with North Korea continue to escalate. In response to Pyongyang’s ballistic missile test, the Trump administration participated with South Korea in a massive live-fire ballistic missile exercise as a warning to Kim Jong-un. Trump warned he is considering “some pretty severe things.”

Trump’s recent saber-rattling against North Korea led Laura Rosenberger, a former State Department official who worked on North Korea issues, to warn that Trump is “playing with fire here ― nuclear fire.”

Trump has indicated his willingness to use nuclear weapons. As he said on MSNBC in 2016, “Somebody hits us within ISIS, you wouldn’t fight back with a nuke?”

Secretary of Defense James Mattis cautioned against war with North Korea. In May, he stated on CBS’s “Face the Nation” that a conflict in North Korea “would be probably the worst kind of fighting in most people’s lifetimes.” It would be “tragic on an unbelievable scale,” he said at a Pentagon press conference.

Nikki Haley, US ambassador to the United Nations, warned the Security Council, “One of our capabilities lies with our considerable military forces. We will use them if we must, but we prefer not to have to go in that direction.” But, she said, North Korea is “quickly closing off the possibility of a diplomatic solution.”

The UN Charter requires the pursuit of peaceful alternatives to the use of military force. Christine Hong, associate professor at the University of California, Santa Cruz, wrote in the Progressive, “Unsurprisingly, few media outlets have reported on North Korea’s overtures to the United States, even as these, if pursued, might result in meaningful de-escalation on both sides. To be clear: peaceful alternatives are at hand. Far from being an intractable foe, North Korea has repeatedly asked the United States to sign a peace treaty that would bring the unresolved Korean War to a long-overdue end.”



Trump’s Unlawful Military Attacks



First, after Congress has declared war, which has not happened since World War II. Second, in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces,” which has not occurred. And third, when there is “specific statutory authorization,” such as an AUMF.



“There’s no doubt that international law, the UN Charter, prohibits the use of military force for retaliation or for reprisal, punishment,” said Mary Ellen O’Connell, professor of international law at the University of Notre Dame. “You can only use military force in self-defense, and he did not.”



The Stakes of the Effort to Repeal the AUMF


In 2015, Obama proposed repealing the 2001 AUMF and replacing it with a new one. Obama’s proposal contained no geographical limitation and would have allowed the use of military force against ISIS and “associated forces,” which is overly broad. And although it would have prohibited “enduring offensive operations,” it contained a loophole that would have permitted the limited use of ground troops by labeling operations “defensive.”

Obama essentially asked Congress to bless endless war against anyone he wanted, wherever he wanted. Congress declined Obama’s invitation.


Copyright Truthout. Reprinted with permission.

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. An updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, will be published soon.