Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September 14, 2001, authorizes the use of United States Armed Forces against those responsible for the attacks on September 11, 2001 and any "associated forces". The authorization granted the President the authority to use all "necessary and appropriate force" against those whom he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. The AUMF was signed by President George W. Bush on September 18, 2001. As of December 2016, the Office of the President published a brief interpreting the AUMF as providing Congressional authorization for the use of force against al-Qaeda and other militant groups.
The only representative to vote against the Authorization in 2001 was Barbara Lee, who has consistently criticized it since for being a blank check giving the government unlimited powers to wage war without debate. Lee has initiated several attempts to repeal the authorization, but as of 2018 has not been successful. Business Insider has reported that the AUMF has been used to allow military action in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia.
Text of the AUMF
- To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it
- Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1 – Short Title
This joint resolution may be cited as the 'Authorization for Use of Military Force'.
Section 2 – Authorization For Use of United States Armed Forces
- (a) IN GENERAL- That 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.
- (b) War Powers Resolution Requirements-
- (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
- (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.
An initial draft of Senate Joint Resolution 23 included language granting the power "to deter and preempt any future acts of terrorism or aggression against the United States." Members were concerned that this would provide "a blank check to go anywhere, anytime, against anyone the Bush administration or any subsequent administration deemed capable of carrying out an attack" and the language was removed.
On September 14, 2001 Senate Joint Resolution 23 passed in the Senate by roll call vote. The totals in the Senate were: 98 Ayes, 0 Nays, 2 Present/Not Voting (Senators Larry Craig, R–ID, and Jesse Helms, R–NC).
House of Representatives
On September 14, 2001 the House passed House Joint Resolution 64. The totals in the House of Representatives were 420 ayes, 1 nay and 10 not voting. The sole nay vote was by Barbara Lee, D-CA. Lee was the only member of either house of Congress to vote against the bill.
Lee opposed the wording of the AUMF, not the action it represented. She believed that a response was necessary but feared the vagueness of the document was similar to the 1964 Gulf of Tonkin Resolution. The Tonkin act was repealed in 1970 amid discussion of its facilitation of the Vietnam war and its potential to enable a new incursion in Cambodia.
Reassessments during the Obama and Trump administrations
In 2016, constitutional law specialist professor Bruce Ackerman of Yale Law School said that the Obama Administration's use of the AUMF to that point had overstepped the authorized powers of the final, enacted version of the bill so as to more closely resemble the capabilities named in this draft text rejected by Congress.
On June 29, 2017, a group of libertarian Republicans and Democrats on the House Appropriations Committee approved Barbara Lee's amendment to end the 2001 authorization within 240 days. This would have forced debate on a replacement authorization, but the amendment was removed from the bill by the Rules Committee, and the AUMF remains in effect.
In 2018, Senators Tim Kaine and Bob Corker proposed a new version of the AUMF that would allow ongoing wars against terrorist groups abroad, broaden the list of people who can be subjected to indefinite detention without being charged with a crime, and enable the president to wage any war simply by giving Congress 48 hours' notice.
Citations in law
- The AUMF was unsuccessfully cited by the George W. Bush administration in Hamdan v. Rumsfeld, in which the U.S. Supreme Court ruled that the administration's military commissions at Guantanamo Bay were not competent tribunals as constituted and thus illegal.
Reason: The Court held that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.
- The AUMF has also been cited by the Department of Justice as authority for engaging in electronic surveillance in ACLU v. NSA without obtaining a warrant of the special court as required by the Constitution.
Use by the DOD
The AUMF has also been cited by a wide variety of US officials as justification for continuing US military actions all over the world. Often the phrases "Al-Qaeda and associated forces" or "affiliated forces" have been used by these officials. However, that phrase does not appear in the AUMF.
According to a report by the Congressional Research Service, published May 11, 2016, at that time the 2001 AUMF had been cited 37 times in connection with actions in 14 countries and on the high seas. The report stated that "Of the 37 occurrences, 18 were made during the Bush Administration, and 18 have been made during the Obama Administration." The countries that were mentioned in the report included Afghanistan, Cuba (Guantanamo Bay), Djibouti, Eritrea, Ethiopia, Georgia, Iraq, Kenya, Libya, Philippines, Somalia, Syria and Yemen.
- The Authorization for Use of Military Force Against Iraq Resolution of 2002
- Hedges v. Obama, a lawsuit brought by journalists and activists against the National Defense Authorization Act for Fiscal Year 2012 in which Congress "affirms" presidential authority for indefinite detention under the AUMF and makes specific provisions as to the exercise of that authority.
- National Defense Authorization Act for Fiscal Year 2012
- Targeted killing
- The USA PATRIOT Act (2001) and Title II of the Patriot Act, entitled Enhanced Surveillance Procedures
- Operation Enduring Freedom
- War Powers Clause, United States Constitution Art. 1, Sect. 8, Clause 11, which vests in the Congress the exclusive power to declare war.
- "Report on the Legal and Policy Frameworks Guiding the United States' Use of Military Force and Related National Security Operations" (PDF). The White House. Retrieved 2 February 2017.
- Wong, Scott (13 April 2015). "GOP: Obama war request is dead". The Hill. Retrieved 18 December 2015.
- Herb, Jeremy; Walsh, Deirdre. "House panel votes to repeal war authorization for fight against ISIS and al Qaeda". CNN. Retrieved 14 August 2017.
- Woody, Christopher. "Congress may repeal the post-9/11 act the US military used to justify the fight against ISIS". Business Insider. Retrieved 14 August 2017.
- Erik, Luna; McCormack, Wayne (2015), Understanding the Law of Terrorism, New Providence, New Jersey: LexisNexis, p. 413, ISBN 9780769849072, OCLC 893668978
- Polner, Murray (2010-03-01) Left Behind, The American Conservative
- Final Vote Results for Roll Call 342, U.S. House of Representatives. Accessed 7 April 2007.
- "GULF OF TONKIN RESOLUTION". history.com. The History Channel.
- Mian, Rashed (2016-09-14). "2001 AUMF: The Controversial Truth Behind America's Never-Ending War". Long Island Press. Morey Publishing, LLC. Archived from the original on 2016-10-11. Retrieved 2016-10-11.
- Desiderio, Andrew (2017-06-29). "House Committee Approves Repeal of 2001 Military Authorization". The Daily Beast. Retrieved 2017-07-20.
- Bertuca, Tony (2017-07-19). "UMF repeal stripped from defense appropriations bill". Inside Defense. Retrieved 2017-07-21.
- Friedersdorf, Conor (12 June 2018). "Congress may declare the Forever War". The Atlantic. Retrieved 14 June 2018.
- NPR, 4/18/14. Radiolab. "60 Words" In collaboration with Buzzfeed. Reporter, Gregory Johnsen.
- Matthew Weed (May 11, 2016). "Congressional Research Service Report" (PDF). Congressional Research Service. Retrieved July 21, 2017.
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