Authorization for Use of Military Force and Repealing the Constitution

Three days after the attacks of 9-11, the US Congress acted with virtually one voice on September 14, 2001 when, in a fevered state of irrational vengeance, it approved the Authorization for Use of Military Force known as AUMF (JSR 23). Rep. Barbara Lee (D-Ca) voted No.

In a rare act of near-unanimity, Congress took immediate action without benefit of any public hearings on the cause of such an attack, with a one hour debate in the House, with no amendments (all amendments having been deemed out-of-order) and with no consideration of the long-term unintended consequences of open-ended military action.

The Senate resolution, sponsored by Sen. Thomas Daschle (D-South Dakota) was adopted 98-0 with the House of Representatives approving the Resolution by a voice vote. On September 18th President George W. Bush signed AUMF into law.

Acting with an instinctive reaction as if a pre-ordained response could only be war, the Congress gave the President complete statutory authority 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.” In other words, every President forthwith was given the green light by Congress to initiate war solely at their discretion – forever. By God, this was America.

Never mind that the country’s Founders more than two hundred years ago had written Article I, Section 8 of the Constitution to specifically state that “The Congress shall have the power to declare war” Period, End of Story and legally indisputable about who has the ultimate authority and a far cry from the more ambiguous Article, II, Section 2, “The President shall be commander in chief…”. The prescient Founders no doubt had in mind the need to protect the American people from an imperial, dictatorial self-aggrandized King/President obsessed with power. Out of 525 Members of Congress that day, only one righteous voice was heard in the heat of the moment, no cooler head demanded to speak as a docile Congress began more than a decade of Constitutional repeals in earnest.

Given the lightening fast speed with which the AUMF resolution came into being, one might surmise that the idea was waiting in the wings, patiently sitting on someone’s desk pending the occurrence of a massive event that would justify a knee-jerk response and there it was – in someone’s pocket, neatly typed, single spaced, two pages ready to go – a perpetual declaration of the shock and awe of an angry nation intent on retaliation far into the unforeseeable future as pre-emptive, unconstitutional strikes became routine against whomever presumably had committed “acts of treacherous violence” as if the US, pure pristine peace-lovers, had never, would never inflict a similar “grave act of violence” or contemplate such an attack on an unsuspecting population.

Because the Congress purports to be a democratic institution, some Members submitted ‘extension of remarks’ into the Congressional Record to prove to a grief-stricken nation how American Exceptionalism would remain undaunted.

Against the backdrop of $4 trillion worth of US proxy (or not) wars in Iraq, Afghanistan, Yemen, Pakistan, Syria, and Libya, US-initiated ‘war games’ in the Baltics, a US-contrived civil war in Ukraine, lawless drone attacks and special military ops – all costing American prestige around the world as well as thousands of innocent American lives, more thousands of innocent indigenous populations, the National Defense Authorization Act of 2015 (HR 4435) requires Congressional approval to reauthorize the AUMF, the legal justification for an out of control President who believes himself to be above the law and the Constitution.

On May 21, Representative Adam Schiff’s (D-Ca) sunset amendment pointing out that the AUMF “no longer properly encompasses the scope of military action” was rejected 233 – 191 after a 15 minute ‘debate’ with 30 Democrats providing the margin to defeat repeal of AUMF.

That same day, the Senate Foreign Relations Committee held a hearing for the purpose of “reassessing the 9-11 AUMF in light of new circumstances,” with Iraq war opponent Chair Robert Menendez (D-NJ) quoting the President one year ago “pledging to refine and ultimately repeal the AUMF mandate” and that he “would not sign laws designed to expand this mandate further.” Primary witnesses included Mary E. McLeod, Principle Deputy Legal Adviser, Department of State and Stephen W. Preston, General Counsel, Department of Defense.

What follows are snippets of dialogue between Menendez, ranking member Sen. Robert Corker (R-Tenn) and others questioning the need for AUMF and the witnesses which more than adequately portray the utter confusion, if not total incompetence of attempting to articulate the Obama administration’s foreign policy:

Menendez: If the AUMF were to expire, would the president be able to conduct counter terror operations such as drone strikes in Yemen or other operations against the perpetrators of the Benghazi attack using existing legal authorities or would a new, amended AUMF be required to conduct such operations?

McLeod: The AUMF currently, as we’ve said, authorizes the use of force against the al Qaeda, Taliban and associated forces and in Yemen the US military has conducted direct action targeting members of al Qaeda forces in the Arabian peninsula known as AQAP which has been determined part of or at least associated with al Qaeda. And as you mention Senator, Article 2 of Constitution provides the president with the authority to target with military forces to those who pose an imminent threat of armed attack against the US and as both a domestic law matter and international law matter, this authority to act in self defense does not depend on the existence of the AUMF.

Menendez: Your answer is, therefore, you do not need a new or amended AUMF to conduct such operations.

McLeod: Not for the president to take action against imminent threats to the United States.

Preston: I agree.

Menendez: … the question is acting against perpetrators of Benghazi attack an imminent threat? SILENCE I’d be happy for either one of you to answer. SILENCE

McLeod: We’ll answer.

Menendez; I know because you are not going to the next Senator until you do.

McLeod: No, I promise. I’m going to answer right now. US remains committed to using every lawful tool available to bring the perpetrators of the Benghazi attack to justice and we think we have adequate tools to meet that objective…”

Menendez: …and if that investigation leads to the identification of perpetrators, how would you act against the perpetrators, under what authority? SILENCE

Preston: Perhaps I could chime in. I think we have a range of authority and our government is committed to making full use of all lawfully available instruments and actual power to bring those people to justice and to ensure they do not present a threat to this country. To the extent that they present an imminent threat of violent attack to this country, the President has authority under the Constitution, authority to use force in order to protect this country.

Menendez: What authority does the 9-11 AUMF give the president in terms of authority to use force that he doesn’t already possess in other authorities including Article 2 of the Constitution.

McLeod: Senator, as we’ve said, the president does have authority under Article 2 to protect the nation against imminent threat of armed attack however as the president has already said and I agree with, it is always better and more powerful to have the Congress and Executive branch working together.

Menendez: That’s not my question. I’ve got to get a sense from the administration perspective of what you feel the AUMF gave you that you didn’t have otherwise constitutionally or through other statutory provisions, because if you’re telling me that you have all the authority in the world to go ahead and do everything that the 911 what the AUMF provided, then that AUMF wasn’t necessary so give me a sense of what you got from the AUMF that you don’t have under existing or constitutional law. .. Are you telling us that AUMF was unnecessary other than an expression of Congressional support?

Corker: Ms. McLeod, it’s unbelievable to me that to answer our questions you have to find the place in your pre- prepared statement and cannot answer our questions directly yourself which is troubling to me. I think I heard you say that the president has the authority to carry out counter terrorism activities without really having an AUMF… …I’d just like to know yes or no – if the 2001 AUMF was undone, can the president carry out the activities that he’s carrying out right now?

McLeod: Yes, I believe he could…

Corker: So we in the congress don’t really need to be involved in this subject at all.

McLeod: … with sustained military engagements, it is definitely appropriate to get authorization for use of military force..

Corker: Are we in sustained military operations now against terrorists? I know the president said a year ago we weren’t; we were doing ‘targeted’… but are we or are we not in a continuous effort against al Qaeda and affiliated
groups? Yes or no? SILENCE I’d like for the record she has to look to other person (Preston) to get the answer. I find this very disconcerting. I guess you want to answer for her?

Preston: I didn’t understand your question. It was directed solely at her.

Corker: I notice a staffer is giving you the answer. If you would read it for us it would be great.

McLeod: Could you repeat your question Senator Corker?

Corker: pause. (heavy sigh) Does the president have the ability without AUMF to carry out the activities he’s carrying out today against terrorist affiliates of alQaeda and are we or are not in a continuous activities against them?

Mcleod: We continue to be in armed conflict with Al Qaeda

Corker: So we’re in a continuous activity. So do we need an AUMF or not?

Mcleod: I think as we’ve said it is important to have..”

Corker: Important for what reason? politically or legally?

McLeod: In part politically but also because when the Congress has a role to play…

Corker: Tell me what that role is because if I understand what you said before , the president can carry out the activities he is carrying out without AUMF so it sounds to me like we’re pretty irrelevant to the process from the administration’s standpoint.

McLeod: That is not true Senator Corker …we have consulted closely with the Congress on our counterterrorism activities.

Corker: Well, tell me how we are relevant? NO RESPONSE Mr. Preston, do you believe that the 911 AUMF authorizes you to take action against all terrorist groups that present an ongoing serious threat to the United States? Are there any terrorist groups that the AUMF does, sounds like we don’t need an AUMF at all so its becoming an irrelevant question but are there terrorist groups that you don’t have the ability to go against?

Preston: I would not say the AUMF is irrelevant or that the Congress role is irrelevant…

Corker: Are there groups that we cannot go against today, yes or no?

Preston: …to answer your question more directly, the AUMF applies to al Qaeda, Taliban, groups and individuals that are part of Al Qaeda and that Taliban and associated…

Corker: That wasn’t the question. And you’re really frustrating me and I generally have a good nature but I’m really getting upset.

Preston: …a good deal of this is premised on finalization of what the circumstances, mission and presence in Afghanistan will be and that still remains to be finalized.

Corker: That last statement about waiting to see what we’re going to do in Afghanistan after the presidential election is one of the most bogus, lacking in substance comments I have ever heard before this committee. It has nothing to do with the AUMF, nothing…

Menendez: what I hear is there’s no reason why the administration would oppose repeal of 911 AUMF totally because you basically say the president has all the authority notwithstanding the AUMF.

Senator Tim Kaine (D-Va) recalled Administration witnesses before the Armed Services Committee last year “opined pretty blithely that war so declared is likely to last another 25 to 30 years. I don’t think that’s what congress intended.”

Sen. Dick Durbin (D-Ill) added that Congress had not fully understood what we were approving, had not understood we were approving the longest war in American history.

Sen. Ron Johnson (R-Wisc): Can you define an imminent threat, how is it made operational?

McLeod: most obviously, an individual who is planning a specific attack against US persons would be an imminent threat against the US.

With legislative authority over the State Department, members of the Committee continued a grilling of bureaucrats that hasn’t been seen in the Senate for some time – the esteemed Sen. Frank Church comes to mind. While long overdue, conducting what should routinely be a rigorous oversight hearing does not compensate for years of a passive Senate allowing an inexperienced White House to fumble hugely substantial foreign policy decisions.

But here’s the million dollar question: Now that the Committee has articulated how that one AUMF vote, cast in the heat of confusing patriotism with military passion, morphed into more than a decade of assorted financial debacles and a constitutional collapse, not to mention a near-fatal decimation of a functioning democracy, how will the Committee and Congress rectify its earlier mistake? Since actions speak louder than words, is it too much for the American public to expect some real leadership any time soon, daresay even political courage?

Renee Parsons was a staffer in the U.S. House of Representatives and a lobbyist on nuclear energy issues with Friends of the Earth.  in 2005, she was elected to the Durango City Council and served as Councilor and Mayor.  Currently, she is a member of the Treasure Coast ACLU Board.

Renee Parsons has been a member of the ACLU’s Florida State Board of Directors and president of the ACLU Treasure Coast Chapter. She has been an elected public official in Colorado, an environmental lobbyist and staff member of the US House of Representatives in Washington DC. She can be found on Twitter @reneedove31