On Wednesday, the House rejected, by a vote of 138-285, a proposed amendment to the 2017 NDAA offered by Congresswoman Barbara Lee (D-CA) that would have repealed the 2001 AUMF 90 days after enactment of the NDAA. The text and floor debate are here starting at H2742. Lee acknowledged that she was not trying to terminate congressional authorization to use military force against ISIL, but rather to force Congress to debate and pass a new ISIL-specific authorization by ending the 2001 authority upon which the President has been relying since 2014. She said: “We have a constitutional responsibility to do our job. Unfortunately, Congress is missing in action.”
Lee, who was the only member of the House to vote against the 2001 AUMF back in September 2001, argued that the AUMF had become a “blank check” for the Executive to use military force. She introduced a report from the Congressional Research Service that found that the 2001 AUMF had been publicly cited by Presidents Bush and Obama as authority to use force 37 times (18 by Bush, and 19 by Obama) in 14 countries over the last 14 years.
Thirteen Republicans and 125 Democrats voted for Lee’s amendment; 228 Republicans and 57 Democrats voted against it. The amendment was opposed by House Armed Services Committee Chairman Thornberry and House Foreign Affairs Committee Chairman Royce. Thornberry said: “to unilaterally repeal the 2001 AUMF on which the administration is relying for all its counterterrorism activities not only against al Qaeda, but against ISIS and others, to repeal it now, I believe, would be a mistake.”
I share Congresswoman Lee’s (and many other members’) frustration that Congress has been unwilling or unable to agree on a new ISIL-specific AUMF. I have long argued that the 2001 AUMF should be updated to address terrorist threats that have emerged since 2001 and to provide more specific detention authorization and procedures. (In November 2010, I wrote one of the earliest op-eds in the Washington Post urging revision: “A Counterterrorism Law in Need of Updating”.) Both the Bush and Obama Administrations should have worked harder with Congress to draft an updated counter-terror AUMF (and the Obama White House should have worked with Congress to revise the draft it prepared in February 2015.) To force Congressional action, I would have been tempted to vote for Ms. Lee’s amendment. But, at the end of the day, I agree with Chairman Royce that it would be “irresponsible” to repeal congressional authorization for use of force against ISIL, Al Qaida, and associated groups, without passing a new authorization at the same time.