Leading House Democrats are making plans to begin repealing and replacing the anti-terrorism authorizations to use military force that have been on the books for nearly two decades.
Democrats told reporters on Friday that they were seizing on recent statements from the Biden White House that it wants Congress to replace the open-ended authorizations for use of military force with a legal framework that is "more narrow and specific." The 2001 and 2002 war resolutions permit attacks against al-Qaida and Saddam Hussein's regime in Iraq, respectively.
House Foreign Affairs Chairman Gregory W. Meeks said during a video press conference that in the coming weeks he would hold a markup to advance legislation from Rep. Barbara Lee, D-Calif., to repeal the 2002 war authorization that led to Operation Iraqi Freedom in 2003. The repeal measure has 90 cosponsors, including seven Republicans.
“Given the 2002 AUMF is not needed for any ongoing military operations, there is no reason at all to leave it in place,” said Meeks, D-N.Y.
When Democrats took back the House in the 116th Congress, the chamber repeatedly passed Lee’s 2002 authorization repeal measure, though the legislation was never able to clear the Republican-controlled Senate. But with unified Democratic government this year, repeal backers are hopeful the political calculus has finally changed in their favor.
Sens. Tim Kaine, D-Va., and Todd Young, R-Ind., have a similar measure that would repeal both the 2002 AUMF as well as the 1991 military authorization for the Gulf War. Their resolution has eight other bipartisan cosponsors including Sen. Charles E. Grassley, R-Iowa
“We really just need the political will to move forward,” said Lee, noting that less than 25 percent of current lawmakers were serving in Congress when the 2001 and 2002 war authorizations were passed in those early fearful days after the Sept. 11 terrorist attacks. Lee is well known for being the only lawmaker to vote against the 2001 war authorization.
Next week will mark the 18th anniversary of the U.S.-led invasion of Iraq. As of January, there were some 2,500 deployed U.S. troops in the country.
No longer needed
Supporters of repealing the 2002 AUMF contend it is not needed as legal justification for the limited ongoing counterterrorism operations taking place in Iraq against the Islamic State terrorist group, and they worry that leaving the authorization on the books is an invitation for abuse by future presidents.
In 2014, the Obama administration said the 2002 authorization provided a supplementary legal justification for its redeployment of troops to Iraq but that it was primarily relying on the more expansive 2001 authorization as justification for its burgeoning anti-Islamic State campaign.
However, the Trump administration cited the 2002 authorization as giving it partial justification for its January 2020 targeted drone assassination of Iranian spymaster and top general, Qassem Soleimani, on the rationale he jeopardized U.S. efforts to establish a peaceful and democratic government in Iraq.
As of February 2018, successive administrations have cited the 2001 AUMF to justify 41 military operations across 19 countries, according to the Congressional Research Service.
“These have been stretched far beyond anything Congress ever intended it to do,” Meeks said.
Complications in repealing 2001 resolution
House Intelligence Chairman Adam B. Schiff said Congress’ constitutional authority to be the deciding voice on matters of when the country goes to war has been badly eroded over the decades. Former President Donald Trump accelerated that trend, Schiff said, by disregarding lawmakers’ explicit spending instructions so he could divert Pentagon money to build a border wall with Mexico.
Previously, lawmakers had comforted themselves with the notion that their “power of the purse” gave them the ultimate ability to curtail or end funding to military operations they opposed.
But Trump showed that even congressional authority over spending could be hollowed out if the president chooses to declare a national security emergency, as he did with respect to migrants illegally entering the country from Mexico.
By forcing Democrats to take him to court over the issue, Trump offered a playbook to future autocratic-minded presidents on how they might launch overseas military operations on flimsy legal grounds and then leave it up to the court system to make a ruling on its legality, a process that could take years.
“The place to start is repealing these old, outdated authorizations,” Schiff, D-Calif., said of clawing back Congress’ war powers. “I think we can do so with the prior Iraq authorization without any impact on the president’s ability to respond to dangers in that region.”
Meeks said he is fine with taking the lead on efforts to repeal the 2002 authorization and replace the 2001 version. On March 23, the House Foreign Affairs Committee will hold a hearing on “Reclaiming Congressional War Powers.”
“I’m not going to wait on the Senate,” the chairman said. “We’re going to move in a very expeditious manner.
On the Senate side
Senate Foreign Relations Chairman Bob Menendez told CQ Roll Call on Thursday he doesn’t have a timeline for when the committee might markup legislation to repeal and replace the older military authorizations.
The New Jersey Democrat indicated that in the short term, he is focusing on getting a bipartisan China policy bill advanced through his committee. Senate Majority Leader Charles E. Schumer has said he wants the chamber to vote on China legislation this spring.
Differences, including among members of the same party, over how narrowly to tailor a replacement for the 2001 war authorization stymied previous efforts during the Obama administration to pass an updated anti-terrorism resolution.
However, there appears to be considerable support for including in an updated authorization an expiration date for military operations in the Middle East and Africa, after which the executive branch would have to persuade Congress to extend it.
“There is growing consensus” that a sunset clause should be included, said Rep. Anthony G. Brown, D-Md.
The former Army aviator and vice chairman of the House Armed Services Committee said there are also arguments in favor of “locking” authorizations in the replacement AUMF to just the seven countries where the United States has ongoing military campaigns.
Those countries are understood to be Afghanistan, Iraq, Libya, Niger, Somalia, Syria and Yemen.
“Any use of force beyond that would require coming to Congress,” he said.