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Revoking the President’s War Powers, Explained
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Revoking the President’s War Powers, Explained

Congress is poised to repeal authorization for the use of military force for the first time since 1974.

Sens. Tim Kaine and Todd Young hold a news conference after the Senate advanced a bill that would repeal the 2002 Iraq and 1991 Gulf War authorizations. (Photo by Bill Clark/CQ-Roll Call/Getty Images)

The Senate voted on March 29 to repeal the two authorizations for use of military force (AUMF) against Iraq. The 1991 AUMF authorized the Gulf War, while the 2002 AUMF authorized the invasion of Iraq in 2003. The legislation now moves to the House for a vote and supporters of the repeal have reason to be hopeful. The House voted to repeal the 2002 AUMF in 2021, during the 117th Congress by a vote of 268-161, with 49 Republicans voting in favor of the resolution.

A new session means the House must vote again, but there is significant support across the political spectrum—ranging from the American Civil Liberties Union (ACLU) to the Heritage Foundation—for repealing the 2002 AUMF. President Joe Biden has voiced his support for the repeal. If the House passes the resolution, it will be the first time since 1974 Congress revokes an authorization of force.

The executive branch is required to notify Congress of airstrikes and combat operations carried out under these authorizations but Congress has no opportunity to debate and vote on the operations.

Does repeal mean Congress will reclaim the war powers it has abdicated to the executive branch over the last three-plus decades? Not exactly. The 2001 AUMF that authorized the war on terror is still in effect and remains a central component to U.S. military policy.

What did the 1991 and 2002 AUMFs authorize?

After Saddam Hussein’s invasion of Kuwait, the U.N. Security Council passed several resolutions calling on Iraq to withdraw from Kuwait by January 15, 1991. Saddam ignored these orders, and on January 14, Congress passed the 1991 AUMF signing off on the use of U.S. troops “pursuant to the United Nations Security Council Resolution 678.” 

Combat operations occurred for five weeks and ended in a ceasefire. Iraq repeatedly defied the ceasefire agreement, including barring the U.N. inspectors from accessing weapon sites. In response, both President Bill Clinton and President George W. Bush maintained that the terms of the 1991 AUMF remained active, though obsolete once the 2002 AUMF was passed.

The 2002 AUMF granted Bush the authority to use force as he determined necessary to “defend the national security of the United States against the continuing threat posed by Iraq.” It was written specifically for the invasion of Iraq but does not include any geographic limitations. The 2002 AUMF was later used to justify force used in Iraq and Syria against the Islamic State in Iraq and Syria (ISIS). In 2020, President Donald Trump used the 2002 AUMF to justify the drone strike that killed Iranian Major Gen. Qassem Suleimani.

The United States military currently has about 2,500 troops deployed to Iraq to advise and assist Iraqi troops in the fight against the remnants of ISIS. These troops are in-country at the invitation of the Iraqi government and so are not reliant on the 2002 AUMF for justification of their presence. 

What about the 2001 AUMF?

One week after the September 11 terrorist attacks, Congress laid the groundwork for the war on terror. The 2001 AUMF granted Bush authorization to use force against those who “planned, authorized, committed, or aided” the 9/11 attacks, and those who “harbored” the attackers. The 2001 AUMF did not specify any regions or targets, nor did it provide a sunset clause. Since then, Presidents Bush, Obama, Trump, and Biden have used the 2001 AUMF as justification for counterterrorism operations around the world.

Sen. Rand Paul proposed an amendment to the Senate’s repeal of the 2002 AUMF whereby the legislation would also repeal the 2001 AUMF—the amendment failed 86-9. Maryland Democratic Sen. Ben Cardin introduced separate legislation to repeal the 2001 AUMF last week, but it remains in committee. He introduced similar legislation in 2015 and 2021, but neither bill ever passed committee.

How have the AUMFs worked in practice and what is their legacy?

By December 2017, the Islamic State had lost 95 percent of its territory, and Iraqi Prime Minister Haider al-Abadi declared the so-called caliphate “defeated.” Despite this defeat, the U.S. government executed counterterrorism operations in an estimated 85 countries between 2018 and 2020 alone, ranging from training and assistance, military exercises, and combat operations. 

Through the authorities granted by the AUMFs, the executive branch maintains a fluctuating list of people and organizations to target. Ostensibly, the targets are “al Qaeda and its associated forces,” though the association does not mean partnership, but shared extremism. 

Perhaps the most notable development from the 2001 and 2002 AUMFs is the U.S. military drone program, which developed as a counterterrorism tool outside of congressional oversight. The U.S. drone program is guided by presidential memoranda—procedures and principles unique to each presidential administration—which, while informative of presidential priorities, are not law. Every president since George W. Bush has written and rewritten their own procedural document for the drone program. Those are effectively memos to operators, but memos are not rigorously debated and passed by Congress, and they are relevant only until the next memo is released. There is little accountability to ensure presidents operate within the Constitution.

In 2011, President Obama ordered a strike on Anwar al-Awlaki in Yemen, citing the 2001 AUMF. Al-Awaki was born in New Mexico and rose in prominence as an incendiary cleric in Yemen and the United States. The Obama administration alleged he was an operational leader of al-Qaeda in the Arabian Peninsula. Though charges were never formally brought against al-Awlaki, he was sentenced to death-by-drone through a secretive process between the White House and the Department of Justice. While this is not the only time a U.S. citizen was killed in a drone strike, it is the only time a U.S. citizen was a target.

Who’s for repeal and who’s against it?

Virginia Democratic Sen. Tim Kaine, who sponsored the legislation, explained in a statement that “the 1991 and 2002 AUMFs are no longer necessary, serve no operational purpose, and run the risk of potential misuse. Congress owes it to our servicemembers, veterans, and families to pass our bill repealing these outdated AUMFs and formally ending the Gulf and Iraq wars.”

Texas Republican Rep. Chip Roy, who cosponsored similar legislation in the House, released a statement that repealing the Iraq AUMFs is “necessary to ensure these decades old and outdated authorities are not abused in the future. This would be a first step towards a clearer, more focused military strategy, a more responsible government, and a stronger, more united country.”

Critics of the repeal, including the 30 Senate Republicans who voted against the legislation, cite the ongoing war on terror and rising tensions with Iran as part of the reason to keep the 2002 AUMF in place. “The world continues to be a troubled place,” Sen. Mitt Romney, who voted against the repeal, told Business Insider, “I don’t want to remove any of the authorities that have been, or may be, relied upon to defend our interests.”

In a statement to the press, Senate Minority Leader Mitch McConnell cited growing tensions with Iran for his opposition: “Tehran wants to push us out of Iraq and Syria,” he stated. “Why should Congress make that any easier?”

House Speaker Kevin McCarthy said he would allow the 2002 AUMF repeal to come to the floor, but it will first go to committee and made clear he would block any legislation that included a repeal of the 2001 AUMF. The Biden administration made a similar announcement, supporting the repeal of the 2002 AUMF, while citing the ongoing military operations which rely on the 2001 AUMF. Despite a formal end to the war in Iraq, and the decision to remove troops from Afghanistan, Congress is not prepared to relitigate the terms of the war on terror. 

Emma Rogers is a former Dispatch intern. She has a masters degree in global policy studies from the University of Texas.