Episode 25: War Power Politics (from the archive)

Heather Brandon-Smith & Rita Siemion on the rise and stall of AUMFs

Saturday marked the nineteenth anniversary of the beginning of the second Iraq War—a war Congress never formally declared. Instead, just like with America’s invasion of Afghanistan, Congress passed an Authorization for Use of Military Force (AUMF). Together, these AUMFs provide the legal basis for the ongoing war on terror and have been loosely interpreted by every president since 2001 to authorize military action anywhere with little to no Congressional oversight. Though these AUMFs remain on the books today, the past year has seen a push by lawmakers from both sides of the aisle to reclaim Congress’s role in matters of war and peace—an issue that extends beyond America’s post 9/11 wars. Questions of Congressional oversight remain pertinent as the United States debates how to respond to Russia’s war in Ukraine.

This week, we’re revisiting our season two conversation with Heather Brandon-Smith and Rita Siemion, both experts on AUMFs and advocates for their repeal. They discuss the history of these AUMFs, prospects for reform under the Biden administration, and why repealing them is necessary to end America’s post-9/11 wars.

Heather Brandon-Smith is the legislative director for militarism and human rights at the Friends Committee on National Legislation. Heather is also an adjunct professor at the Georgetown University Law Center and was formerly the advocacy counsel for national security at Human Rights First.

Rita Siemion serves as senior counsel for the Senate Judiciary Committee. Formerly, Rita was the director for national security advocacy at Human Rights First and taught law at Georgetown University Law Center and American University’s Washington College of Law.

This podcast episode includes references to the Eurasia Group Foundation, now known as the Institute for Global Affairs.

Show notes:

Archival:

President George W. Bush's Remarks At Ground Zero September 14, 2001 (USA Patriotism!, September 8, 2014)
President George W. Bush addresses a Joint Congress about the War on Terror (AP Archive, July 31, 2015)
Bush address on military action in Afghanistan (AP Archive, July 31, 2014)
Barbara Lee's 9/14/01 Speech (One Voice PAC, September 12, 2007)
Rep. Lee Discusses 2001 AUMF on 16th Anniversary of Historic Vote (Rep. Barbara Lee, September 13, 2017)
US Senate fails to override Trump veto on Yemen war | Al Jazeera English (May 3, 2019)
Sens. Sanders, Lee Explain Bipartisan Bill To End U.S. Support For Saudi-Led War In Yemen | NBC News (November 28, 2018)

Transcript:

January 19, 2021

HEATHER BRANDON-SMITH: Everything should be taken into consideration about how we're going to pursue this use of force, and then what is the strategy in the aftermath once we've achieved our goal? Because ultimately the purpose of war is peace. We don't start a war to be in a forever war. The purpose is to get us back to a position where we're sort of back to normal, back to peace time.

***

MARK HANNAH: Welcome to None of the Above, a podcast from the Eurasia Group Foundation. My name is Mark Hannah. America has been at war now for two decades. Or has it? Turns out from a very technical definition, we, in fact, have not been at war. We're going to make sense of this by speaking with two experts: Heather Brandon-Smith of the Friends Committee on National Legislation and Rita Siemion of Human Rights.

First, we're going to start off with you, Rita. In addition to serving as the director of National Security Advocacy and Human Rights First, you are a law professor at Georgetown and American University, where you teach courses on topics ranging from targeted killing to the law of armed conflict.

Thank you for joining us.

Rita, let's begin with some history. The United States Constitution directs that, in fact, the president does not have the authority to declare war, but rather that falls to the United States Congress. I'm curious. Why did the framers give power to declare war to the legislative rather than the executive branch?

RITA SIEMION They wanted it to be difficult to go to war. They wanted it to be a considered, thought-out decision that was supported by the American people. They didn't want the decision to rest in the hands of one individual but in the hands of the Congress and the people's representatives so that there would be robust debate and deliberation before reaching such a grave decision.

HANNAH: I suppose the founders assumed congressional representatives would be closer to public opinion and to the sentiment of their constituents and more responsive to that opinion as well. Having just revolted against a monarchy, I could see them imagining the executive branch or the president maybe being more detached or even insulated or power hungry.

SIEMION: For sure. I think for all the reasons you just said, but also just because it's harder to get several hundred people to agree on a decision than to get one person to agree to do something or decide to do something. It's also just the “gumming up the works” of it. Right? We watch how Congress functions or fails to function today, and they understood this—that it was challenging to get a majority of Congress to agree to something. And therefore, it would have to be something for which there was a lot of support in order for Congress to reach such a decision. They knew it would be hard, and they wanted it to be hard.

HANNAH: We also spoke to Heather Brandon Smith, who is the legal director for militarism and human rights at the Friends Committee on National Legislation. This is a national, nonpartisan Quaker organization which lobbies Congress and the executive branch to advance peace and justice. She leads their work to repeal outdated war authorizations.

Heather also joins us from Washington. Thank you, Heather, for being here. Talk to us for a minute about what the AUMF is and what it was designed to do.

BRANDON-SMITH: Well, it's interesting that you ask that question, because one instance where Congress was not gummed up at all and moved very swiftly was after the 9/11 attacks.

Interlude featuring archival audio

BRANDON-SMITH: When they passed the 2001 Authorization for the Use of Military Force against those who were responsible for those attacks and those who harbor them, it took Congress three days to pass that AUMF, which is the abbreviated form, and it was signed into law within a week of the anniversary of the 9/11. Similarly, the next year, when Congress passed the 2002 AUMF against Iraq, Congress showed it was very much capable of being able to come together when the moment truly called for it, although there's a lot of debate as to whether the Iraq war was truly called for. But at the end of the day, Congress is still able to come together to make a decision, and more recently we've seen Congress taking even further steps to reassert their war powers. Just earlier this year after the drone strike that killed Iranian general Qasem Soleimani, Congress passed a resolution telling the president to terminate the use of force against Iran, and Congress came together and did that. So, I think we see that happening a lot, and I think there are many reasons for that. There's a lot of fear in Congress about casting a vote one way or the other. I mentioned the Iran—sorry, Iraq—AUMF. A lot of members of Congress who voted for that certainly paid the price when public opinion saw this is not the way to go. I think there are all sorts of things that come into the gridlock we see in Congress. But then we're also seeing pretty definitive measures taken to be able to act on the issue of war powers.

HANNAH: Heather, talk to us for a minute about what the AUMF is and what it was designed to do.

BRANDON-SMITH: AUMF stands for Authorization for Use of Military Force. We abbreviate that to be AUMF. It's basically like a more limited declaration of war. There are two ways Congress can authorize war. One is through a declaration of war, which is all-out total war. And now there is an AUMF—an Authorization for Use of Military Force—which authorizes more limited force.

The AUMF that has been used incredibly broadly—the most broadly—is the 2001 AUMF. That's the one that was passed after the 9/11 attacks. It's actually been used to justify—that we know of—forty-one operations in nineteen countries. It has never been amended, reauthorized, or anything. But what has happened—which has now enabled three administrations to use it so broadly—is the term “associated forces” has been read into the AUMF by three presidents now. They claim that the 2001 AUMF authorizes force against al-Qaeda, the Taliban, and their associated forces. And so, they have a definition of “associated forces,” and if a group meets that definition—which is a fairly malleable definition—they can use force against that group regardless of what country that group is in. So, that's how we've gotten to forty-one operations, nineteen countries, and more than half a dozen different groups.

HANNAH: Now, just so we're all on the same page, there was the 2001 AUMF and the 2002 AUMF. Right? They authorized different things. What did those authorizations allow President Bush to do or not do? I understand these authorizations were somewhat brief and somewhat vague in their language.

BRANDON-SMITH: Sure. Yeah, the 2001 AUMF is particularly brief. It's only sixty words long, and it authorized the president to use all necessary and appropriate force to—and I'm paraphrasing now—go after those who were responsible for the 9/11 attacks and those who harbored them. They didn't actually use the names al-Qaeda and the Taliban and Afghanistan in there, partly because the CIA hadn't conclusively determined that those were the groups who were responsible or who harbored al-Qaeda. So, they had a descriptive term. That was the 2001 AUMF. As you probably know, that's been called the “blank check for war,” but at the time, it was really intended to be a narrow and limited authorization.

Then we have the 2002 AUMF against Iraq, which is very clearly directed at the Saddam Hussein regime in Iraq. And the reason for the Authorization for Use of Force against Iraq at the time was because it was suspected that Iraq had weapons of mass destruction, which were posing a threat to the United States. So, it was very narrow parameters.

HANNAH: If I were a member of Congress, and I gave the Authorization for Use of Military Force to a president, and then suddenly this president was attacking or his successors were attacking nineteen different countries, I'd be pretty miffed that a law which was intended to be specific has been interpreted so broadly. Can you describe for us how Congress has responded to the various presidents throughout the past several administrations invoking AUMF to essentially bomb sovereign countries and attack people in these sovereign countries on behalf of their constituents?

SIEMION: The reaction in Congress has been, I would say, mixed. There are those who believe that the authorization was quite specific and narrow and that the president and successive presidents have gone beyond what Congress authorized, and they are bothered by that from a constitutional, separation of powers perspective. That and they think Congress must authorize it. But they aren't necessarily in disagreement with the decision to use force in Country X or against Group Y. And so, that might make them less noisy in protesting because maybe they support the policy itself, even if they are frustrated from a congressional power standpoint.

Then there are those who are opposed to both, and those are the ones that I think have been more vocal in Congress needing to take back some of its power.

HANNAH: Who are some of the most vocal champions of reclaiming their war powers?

SIEMION: The number one leader on this, of course, is Congresswoman Barbara Lee, and she's been a leader from day one. She was, at the time, the lone voice who said we actually need to take a step back here and think through what we're authorizing. And she was concerned it could be abused and stretched and interpreted as the blank check that it then later came to be used as.

Interlude featuring archival audio

SIEMION: There were many members, as Heather was saying, who viewed this as an extremely narrow authorization and thought this was an exaggerated fear, and sadly, her prediction and fear turned out to come true.

HANNAH: Let's talk about the work your group is doing at Human Rights First. What is your main advocacy objective day to day, specifically when it comes to war powers?

SIEMION: We're actually—Human Rights First is a human rights organization, which you can tell from the name. So, we're not an anti-war organization. We're not a constitutional separation of powers organization. We are coming to these issues from a human rights perspective, and our concern with the entire war-based approach to the 9/11 attacks and how using or claiming the right to utilize powers and tools of war beyond the situation that those exceptional powers were designed for—that translates into human rights abuses such as indefinite detention. We're still holding people in Guantanamo using made-from-scratch military commissions system that has yet to produce justice in the 9/11 attacks, and the use of drone strikes far from battlefield scenarios that the power to kill people who were qualified as combatants. Those rules were designed for really narrow and exceptional circumstances, and our concern as a human rights organization is the government’s power to kill, detain, use military trials, and use force far beyond those narrow boundaries of war.

HANNAH: You say Human Rights First isn't necessarily a separation of powers organization, but do you see it moving in that direction the more you attribute the lack of separation of powers to human rights abuses by the United States? Do you see yourselves staking out a position on this at some point in the future?

SIEMION: We do take a position on it, because all of these layers of constraint on the use of force are all protections—for example, protection on the right to life. That requires all of the domestic protections, all the international law protections—all of these layers are actually important for protecting people from an arbitrary use of force or an arbitrary killing by the government or arbitrary detention. But again we don't come at it just as institutionalists. We do see how this stretching of authority has enabled the use of powers we don't think Congress actually authorized the government to use, and certainly not in this way.

HANNAH: The main argument you're making is that the presidents have invoked these authorizations illegally. Right? It's that they've over-broadly interpreted the authorization Congress lawfully gave them, correct?

SIEMION: Yeah. I don't think anyone can really say with a straight face that if you had taken a poll of all of the members of Congress who voted in those days after 9/11, and asked them, “Are you authorizing full-scale ground wars and drone strikes in half a dozen countries against half a dozen groups around the world for the next two decades?” Not a single member would have said yes. I wouldn't go so far as to say illegal. I think that's a pretty strong term. But lawyers have cleverly stretched and expanded any ambiguities in the law or lack of safeguards, such as a sunset or et cetera, in the 2001 AUMF to stretch it and stretch and stretch it. And Congress should really take a lesson from that to make sure that next time they put those safeguards in place so they're not giving away their power to another branch of government.

HANNAH: Rita, does the incoming Biden Administration have a stance on this? Do you get the sense that he and his team agree they should tear these authorizations up, or is there part of them that simply doesn't want to relinquish the power now that they are the ones who will have it?

SIEMION: That's always the challenge. When you're sitting on the outside, you can say, “Oh, these powers need to be reined in.” And then once you're on the inside, you want to preserve as much flexibility as possible. I think there is always that tendency with any incoming administration. We do know President-elect Biden has made a clear commitment to ending so-called endless war. But if you look carefully at what he said, he's also said he thinks it's important to maintain a robust counterterrorism mission. So, I think the challenge the incoming administration is going to face is figuring out what the distinction is between those two. If you try to end endless war by just bringing ground troops home from Afghanistan or Iraq, et cetera, but try to hold onto the use of wartime powers for counterterrorism, then you're not actually succeeding in ending endless war. To actually end the wars, as he has expressed a desire to do, his administration is going to have to figure out how to conduct counterterrorism outside of a war framework or a war paradigm for those operations. That means they're going to have to find alternative tools for addressing terrorism and the threat of terrorism beyond drone strikes.

HANNAH: Heather, these authorizations are ultimately designed to keep us safe. Then after all these interventions the 2001 and 2002 attempts have enabled—Afghanistan, Iraq, Libya, Syria, Somalia, Niger, Yemen, Pakistan—are we more or less safe as a result?

BRANDON-SMITH: That's a really important question, and I was thinking about that while Rita was answering your last question. The short answer is no. This has not been the success it was supposed to be. Even if you just look at Afghanistan. All of this blood and treasure has been still there. There have been 43,000 civilians killed in Afghanistan. And I think it has cost us a trillion dollars there. And yet the Taliban now has more territory in Afghanistan than at any time since the U.S. first arrived in 2001. And if you look at all of the post-9/11 wars, you've had 800,000 people killed in these wars, and 335,000 have been civilians. They have cost 6.4 trillion dollars, and 35 million people have been displaced. And at the same time, the civilians the U.S. kill then turns these local populations against us, and it helps these groups recruit. There are more terrorist groups or groups with extremist ideas out there than there were on 9/11. So, really, this approach hasn't worked. It hasn't made us safer, and it's an interesting time right now during a global pandemic in which we're getting close to 300,000 Americans who have lost their lives. That's a national security issue. We really need to reframe the way we talk and think about this and ask whether this is actually keeping us safe.

HANNAH: Rita, I'm curious about Yemen, because in that situation back in 2019, Congress did try to assert its war powers by passing a measure that would have forced Donald Trump to end America's involvement in the conflict. Trump, of course, vetoed it. Can you give us a rundown of what happened?

SIEMION: In various ways, the United States has been supporting the Saudis in their conflict and Yemen—in some ways somewhat indirect and in other ways a little bit more direct, including refueling the planes that are dropping bombs in Yemen, providing intelligence, and targeting training and assistance. There have been horrific abuses and war crimes there and bombing of civilians and civilian targets. The U.S. has been criticized for supporting this by just helping perpetuate the conflict itself, leading to widespread famine and other horrors there, and Congress—I think rightly—was grasping at ways to try to rein this in.

Interlude featuring archival audio

SIEMION: The problem is that the specific legal authority the administration was trying to use was not the same legal authority Congress had the ability to reign in, and because the president, of course, has the power to veto what Congress did pass. So Congress was able—this is a really big moment. It's the first time in a very long time that Congress was able to come together and vote for the president to have to end this involvement. But, of course, we have the problem of the veto. And also, the executive branch's position was that we're not even doing this under the authority you just took away from us anyway, and it wouldn't necessarily stop what we're doing. But, the legal nuances of that aside, it was still politically powerful and did cause the U.S. to stop some of its involvement in the conflict and, I think, created at least the pressure to start the U.S. down a different road.

HANNAH: Doesn't that seem a little bit inverse, though, that Congress should probably be authorizing… because, albeit indirect, involvement in Saudi's war and Saudi Arabia's war in Yemen—the fact that they find it necessary to vote to end that involvement? Isn't that the inversion of what the framers intended, to some extent?

SIEMION: Exactly. It's completely upside down, right? It's supposed to be that Congress has to provide affirmative authority before the executive branch can do it. Instead, we have these situations where the president is doing something, and Congress is in a position of having to try to stop that after the fact, which is, of course, much more difficult to do.

HANNAH: I want to wrap up here by asking you both about R2P, the Responsibility to Protect doctrine, which has been used by members of Congress and the executive branch to justify military interventions in the name of ending human rights atrocities overseas. This R2P position basically states that the U.S. has not just an opportunity but a responsibility to protect vulnerable populations in those circumstances. Do you see that being a possible excuse or justification on the part of the United States to get involved in additional conflicts outside of, or even in conjunction with, these two AUMFs?

BRANDON-SMITH: I think it's a really difficult question. Responsibility to Protect is an international law doctrine, and it's sort of questionable as to the basis that it really serves for a country to be able to unilaterally—not through the United Nations system—decide to intervene based on this responsibility to protect. The Libya intervention in 2011 was sort of based on R2P and the responsibility to protect people in Libya. In the military action that followed that, yes, Gaddafi was overthrown, but there was kind of a mess left after that. And so, you have got to be careful whenever you use military force in any country for any reason to ensure that you properly plan and that you have a proper strategy for dealing with the aftermath of the particular aim you're going for. And apparently, regime change was not even the aim. It was supposed to be to protect the people of Libya. And now we're in a situation where we're at war in Libya all over again. So, just like any decision to go to war, whether it's based on U.S. national interest or self-defense, I think R2P and these humanitarian intervention goals need to be carefully calibrated and should be debated and properly authorized by Congress. Everything should be taken into consideration about how we're going to pursue this use of force, and then what is the strategy in the aftermath once we've achieved our goal? Because ultimately the purpose of war is peace. We don't start a war to be in a forever war. The purpose is to get us back to a position where we're sort of back to normal, back to peacetime. And we haven't really been there. We're in close to twenty years of endless war. So, that always needs to be a consideration when we're looking at using force for any reason.

HANNAH: I remember we had Rosa Brooks on the podcast, who talked to us about the cultures in history that have always had a way of demarcating war time and peace time in different ways. In today's America, we've become used to this kind of eternal and perpetual war time. Today's wars don't require a total mobilization of the population, so they don't really disrupt what is ordinary people's everyday lives—a lot of ordinary people anyway.

Rita, given your position at a human rights organization, do you support, the Responsibility to Protect doctrine or philosophy, or do you think it perpetuates the cycle of endless wars we find ourselves in today?

SIEMION: As a human rights advocate, of course, when there's a situation where people's lives are in danger or human rights or otherwise are at stake—the entire basis for R2P—those are situations that especially us human rights advocates want to see a solution for. But we also know there's a reason why the founders of this country, as well as the drafters of the U.N. charter, all had in mind constraints against using force. The idea is to try to solve these problems through other means, because we know using military force often backfires. It’s either used for different aims than the humanitarian aims that are claimed, or it results in disaster. And so, there has to be a system in place, and there is a system in place for making sure that using force—both under our constitutional system and also under international law—is meant to be a last resort. Under the U.N. charter, it is also something that has to be done collectively with the support of the U.N. Security Council. Again, this goes back to the “gumming up the works” we talked about before. Within international law, the system is designed to sort of “gum up the works” as well, and that can be really frustrating, again, because we see a situation that's crying out for a solution. And it's really easy and tempting to want to use the military as the solution, but the system makes it hard to do that, to force us to have to grapple with more complex solutions to these very complex problems.

HANNAH: I'm Mark Hannah, and this has been another episode of None of the Above, a podcast from the Eurasia Group Foundation. I want to give a special thanks to our None of the Above team who make this all possible. Thank you to our producer Caroline Gray, our editor Luke Taylor, our sound engineer Zubin Hensler, and EGF’s graduate research assistant Adam Pontius. If you enjoyed what you've heard, please do subscribe on Apple podcasts, Spotify, Stitcher, or anywhere else, you find podcasts. Rate and review us, and if there is a topic you want us to cover, send us an email at info@egfound.org. Thanks for joining us. Stay safe out there and we'll see you next time.

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