A Response to Bruce Ackerman: Whether the 2001 and 2002 AUMFs Are Exhausted

By Robert Chesney
Thursday, September 8, 2011, 11:05 AM

Bruce Ackerman has an interesting piece at Foreign Policy this week, arguing that the “congressional resolutions authorizing combat in Afghanistan and Iraq no longer justify military operations in either country—or anywhere else.”  Bruce concludes that President Obama is thus “moving down George W. Bush’s path to unilateral warfare,” that this constitutes an “existential threat to American democracy,” and that what is needed now is a “new resolution defining war aims for a new decade.”

While I have some sympathy with Bruce’s call for an updated resolution tailored to current circumstances, I do not agree that the two existing AUMFs have run their course. 

Consider first the September 18, 2001 AUMF, which authorized the use of force against the entity responsible for 9/11 in order to prevent further attacks, as well as against those who might harbor that entity.   Bruce cites the remarkable success that we have had against al Qaeda, particularly thanks to the drone program in Pakistan, and concludes that this development, though welcome, “severely undercut[s] the legal basis for the current campaign in Afghanistan” because few al Qaeda members remain in Afghanistan and, in any event, al Qaeda seems to be “disintegrating before our eyes.” The real threat, he argues, stems today from the separate groups in “Somalia, Yemen, or some other failed state,” such as AQAP.  But those groups, he asserts, “simply aren’t within the scope of Congress’s decade-old authorization.” 

I disagree with much of this.  

As to the potential collapse of al Qaeda’s senior leadership, I have two concerns about the legal significance of this point.  First: I hope Bruce is right in his optimistic assessment, and certainly there is some evidence to support it, but even if the rosiest predictions of al Qaeda’s pending demise are accurate, the fact remains that the collapse has not actually happened yet; now is hardly the time to let up, if we are truly this close to pushing al Qaeda’s core into the dustbin.  In fairness, Bruce does not actually say that we should stop drone operations in Pakistan, and in fact might best be read as arguing that we should keep the drone program in place (presumably on the theory that the 2001 AUMF remains good at least for that purpose) while ending our COIN operations in Afghanistan.  If that is what he means, I assume he means also to preserve the option (again, still under the 2001 AUMF) to keep in place the various military and CIA activities in Afghanistan that at least partially undergird the capacity to carry out drone strikes in Pakistan (see Joby Warrick’s the Triple Agent for a detailed account, for example).  But now we’re on a slippery slope, for those operations in turn require some degree of local security, and the next thing you know we have linked at least some degree of COIN activity in Afghanistan to the continuation of the fight against al Qaeda in Pakistan.  And note, too, the likelihood that an American withdrawal from Afghanistan coupled with continued drone operations in Pakistan would result in the remaining members of al Qaeda shifting back into Afghanistan.

As to the independence of other groups apart from core al Qaeda: No doubt some like-minded organizations are indeed truly independent and as a result they are not best understood as coming within the scope of the 2001 AUMF.  But these groups are not all similarly situated.  The most dangerous one arguably is AQAP, and even in the public record there are grounds (see pp.4-5) for concluding that it is sufficiently connected to the original al Qaeda organization so as to be either part-and-parcel of it or at least an associated force.  As for al-Shabab in Somalia, the situation is more complicated, but the important point is that there may be al Qaeda members present in Somalia and even participating in al-Shabab, separate and apart from whether al-Shabab itself has become part-and-parcel of al Qaeda. 

None of which is to say that it is a bad idea for Congress to revisit the 2001 AUMF.  But I just can’t agree that the 2001 AUMF has run its course.

Now, as to the 2002 Iraq AUMF, the operative provision authorized force to “(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) to enforce all relevant United Nations Security Council resolutions regarding Iraq.”  Noting this, Bruce argues that the collapse of the Baathist regime after the initial invasion exhausted part (1) above, leaving only part (2)—the UNSCR provision—in place.  With the expiration of the last relevant UNSCR at the end of 2008, he concludes, nothing was left of the 2002 AUMF’s authority. 

My problem with this analysis is that it does not address the possibility that the 2002 AUMF is best read as having implicitly included authority to use force in Iraq to address the immediate security consequences of our decision to topple their government.  Imagine, for example, that the Security Council simply could not pass any resolutions after the invasion, perhaps because of a persistent veto from a permanent member or two.  That is, imagine that the Baathist regime was gone, and that there was no UNSCR authorizing an occupation force.  There would still, of course, have been a massive and protracted insurgency, and it seems to me that the 2002 AUMF would be best read as implicitly conferring the authority to keep troops in the field there in an effort to clean up our own mess, as it were (or at least to try to do so), as an organic extension of the authority to cause that mess in the first place.  Of course, that doesn’t mean such “clean-up” authority necessarily would extend all the way to today.  The issue Bruce raises, in short, is a legitimate one given the passage of so much time.  But I am not persuaded that “clean-up” authority under the 2002 AUMF would be implausible circa January 1, 2009, at least, not so close to the time of the surge.  Today things do seem different, and the arguments for concluding that any such authority has expired—for surely a line must be drawn at some point—does seem stronger.  But it seems to me that the law does not give us anything like an objective test for drawing that line, and that it is the sort of question ordinarily left to a political judgment (though I appreciate one can spin out extreme cases in which it just isn’t plausible to deny that the line has been crossed).  And as a result, I cannot accept that the continuation of U.S. forces in Iraq between 2009 and today has been ultra vires in the sense Bruce describes.

A final thought: Bruce’s analysis does bring home the indeterminacy of the typical AUMF when it comes to the termination of granted authority.  That indeterminacy is not accidental, I think, but there is much to be said for obliging Congress to revisit such grants from time to time, retailoring them to changed circumstances and ensuring public debate and political accountability.  Sunset provisions, it seems to me, are the natural mechanisms for this.  [UPDATE: I should have noted in the original that Bruce and his co-author, Oona Hathaway, recommend sunset provisions in their Michigan Law Review article "Limited War and the Constitution: Iraq and the Crisis of Presidential Legality."]