Senators worry time running out on updating 2001 military authorization

The Biden administration supports passing a more narrow version, but it has not prioritized the effort

Deputy Secretary of State Wendy Sherman testifies during the Senate Foreign Relations Committee hearing on Tuesday. (Tom Williams/CQ Roll Call)
Deputy Secretary of State Wendy Sherman testifies during the Senate Foreign Relations Committee hearing on Tuesday. (Tom Williams/CQ Roll Call)
Posted August 3, 2021 at 5:14pm

Lawmakers who want to update congressional and presidential war powers are racing to find a path for securing changes as a packed fall legislative agenda risks indefinitely delaying long-sought updates to measures passed after 9/11.

The Senate soon will join the House for a summer recess. When lawmakers return in mid-September, they will start work on a number of must-pass items, work that will take them well into 2022. That docket includes dealing with annual spending bills and votes on infrastructure legislation, as well as Democratic priorities such as a sweeping reconciliation bill and an effort to expand the social safety net.

The dawn of a new year will open the 2022 midterm elections cycle, meaning there will be even less time — and political breathing room — for lawmakers to go about the methodical work of repealing or revising the 2001 authorization for the use of military force.

That AUMF, passed in the chaotic days after the Sept. 11 terrorist attacks, has been roundly criticized by legal experts, Democrats and even a significant number of Republicans for being too broadly written.

In a town not known for bipartisanship in recent years, there is some agreement among lawmakers and experts of all political stripes: Four presidents' military actions show the 2001 measure lacks geographic limitations or an end date. In short, it has become a legal rubber band that has allowed two GOP and two Democratic commanders in chief to order offensive military operations without first seeking lawmakers' blessing.

“I’m seriously considering whether there will be an opportunity for us to put a sunset on the 2001, giving ample time for a replacement to be voted on by Congress, because otherwise I’m not sure we’ll ever do it,” Sen. Benjamin L. Cardin said Tuesday at a Foreign Relations Committee hearing. The Maryland Democrat and other panel members bandied AUMF overhaul ideas with several senior Biden administration officials. The White House has been lukewarm about war powers changes.

Over the past two decades, the 2001 authorization has been used to justify military operations in seven countries and against extremist groups that were not even around in 2001 or have only slight connections to al-Qaida.

“It’s just too easy for administrations to misinterpret the authority of 2001,” said Cardin. “What is wrong with us setting in dates that we need to replace this by, recognizing that you always have Article 2 authority?”

Article 2 authority refers to the interpretation that the Constitution gives the president inherent powers as commander in chief to order military actions in response to national security threats.

Biden stance

While the Biden administration has said it welcomes Congress passing a more narrow and specific AUMF, it has not prioritized the effort nor made clear just what the 46th chief executive would sign.

“We welcome enhanced congressional involvement and interbranch dialogue over the use of military force, including in protecting the United States and U.S. interests from the evolving terrorist threats we face,” Wendy Sherman, deputy secretary of State, told the panel.

Sherman offered some broad outlines of what President Joe Biden might support, including “establishing a mechanism to add groups beyond those that may have been identified by name in the text of the AUMF" and "a mechanism to add countries in which the use of force is authorized against particular groups and to have a periodic review of groups and countries.”

Notably, State’s No. 2 official did not mention being open to a sunset clause in her response to Cardin.

However, Sen. Chris Coons, D-Del., considered Biden’s closest Senate ally, said he appreciated the administration’s “articulated commitment to finding a way to craft an AUMF that is more narrow, more specific, that has a clear process for adding territories and groups, and that would include an end date.”

Sen. Mitt Romney, R-Utah, said he worried about passing anything establishing a sunset date, concerned that a president could be left without legal authorities to strike a violent extremist group.

“I’m concerned that the prospect of this body ever approving an AUMF to deal with the ongoing threat represented by ISIS, the Taliban, al-Qaida and other like groups would never pass this body,” Romney said. “The idea that somehow we’re going to come up with some new AUMFs is just not realistic.”

In the Senate, the effort to rewrite the 2001 AUMF is being led by Tim Kaine, D-Va., and Todd Young, R-Ind. The duo has offered a binding measure to repeal 1991 and 2002 military authorizations. In addition to Young, there are five GOP co-sponsors to the resolution.

Despite some GOP efforts to block their work, including by Romney, the Kaine-Young repeal resolution is expected to advance to the Senate floor after a Wednesday committee markup.

In June, the House passed related legislation from Rep. Barbara Lee, D-Calif.

Should lawmakers try to force the issue of updating the 2001 AUMF by establishing an expiration date, one of their best chances would be via an amendment to the must-pass fiscal 2022 defense policy bill that both chambers will take up this fall.