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Is the White House Plotting an End-Run Around Congress Into Iran?

Officials are suggesting the 9/11 law used by three presidents to justify every intervention of the last 18 years is applicable to Tehran, too.

Members of Congress left a closed door meeting with Secretary of State Mike Pompeo last week with a clear message: the administration believes it has the authority to enter into a conflict with Iran with or without Congress’s say-so.

Conservative Republican Congressman Matt Gaetz and Democratic Representative Elissa Slotkin told reporters that Pompeo had raised the notion that the 2001 Authorization for the Use of Military Force (AUMF), first used to approve the war on the Taliban and al-Qaeda after 9/11, could be used to go after Iran if necessary.

“We were absolutely presented with a full formal presentation on how the 2001 AUMF might authorize war on Iran,” Slotkin said. “Secretary Pompeo said it with his own words.”

After an earlier closed-door briefing on May 21 by interim defense secretary Patrick Shanahan, Congressman Ruben Gallego told reporters, “What I heard in there makes it clear that this administration feels that they do not have to come back and talk to Congress in regards to any action they do in Iran.”

This makes what’s been happening on Capitol Hill today all the more urgent. This month could mark the first time a chamber of the U.S. Congress has moved to repeal the 2001 AUMF, which has been used by three presidents to keep the U.S. in a state of war for nearly 18 years. 

In May, the House Appropriations Committee adopted an amendment to the annual defense spending bill from Representative Barbara Lee that would repeal the 2001 law eight months after enactment. The amendment passed through committee on a party-line vote of 30-22. It could pass, should the Democratic majority remain unified, as early as this week when it comes up for consideration.

The 2001 AUMF was passed three days after September 11 to authorize the use of military force against those responsible for the attacks and those who harbored them, generally understood to be al-Qaeda and the Taliban in Afghanistan. Yet since that time, three administrations have vastly expanded America’s wars, citing the brief—only 60 words—2001 AUMF as authority for 41 operations in 19 countries.

Now we know that the Trump Administration is looking to use it for its own means as well. After a grilling by Senator Rand Paul during an April Senate hearing, Secretary Pompeo refused to concede that the 2001 AUMF would not apply to Iran. Despite President Trump’s State of the Union declaration that “great nations do not fight endless wars,” with every passing day the administration continues to inch towards conflict with Iran—and using the 2001 law to justify it.

While the vote in favor of Representative Lee’s amendment may have been along party lines, the effort to revoke the outdated authorization has not been a partisan issue. Indeed, the greatest champion of AUMF repeal in the Senate is Senator Rand Paul. Earlier this year, he introduced the AFGHAN Service Act, which would repeal the 2001 AUMF after one year. And two years ago, he proposed an amendment to the National Defense Authorization Act (NDAA) that would have repealed, after six months, both the 2001 AUMF and the 2002 Iraq AUMF that targeted the Saddam Hussein regime.

The House Appropriations Committee has previously demonstrated noteworthy bipartisan backing for revoking the 2001 law in order to force Congress to debate and vote on whether to authorize continued military operations. Representative Lee’s very same amendment passed that committee in 2017 by a near-unanimous voice vote, with Republican lawmakers joining their Democratic colleagues to argue in favor of the measure.

“This is something where Congress has collectively avoided taking responsibility for years,” said Congressman Tom Cole. “So if we’re going to send people to war, we owe them the support of the Congress of the United States.”

And Representative Chris Stewart said, “[The military has] the courage to go out and fight these wars, and they notice that we don’t have the courage to debate this, and to give them the authority to go do this…. I support the intent of the amendment and I hope Congress will have the courage to do that.” Despite this hope, then-Speaker Paul Ryan stripped the provision from the bill before it went to the House floor.

This year, the day after the committee adopted Representative Lee’s amendment, she was joined by a bipartisan group of representatives at a press conference to herald the victory and highlight their efforts to reclaim the war powers vested in the legislative branch by the Constitution. Representative Thomas Massie told the crowd, “This is not a partisan issue. It doesn’t matter whether your favorite founding father was Hamilton or Madison or Jefferson or Washington.” He went on, “they all recognized the wisdom of leaving the power to declare war in the legislative branch and the danger of letting the executive branch have that power.”

Massie, one of 62 cosponsors of Lee’s standalone AUMF repeal bill (which has the same effect as her successful amendment), noted that there were roughly only 70 current members of Congress who had voted on the authorization in 2001. “And I can tell you,” he said, “those 70 who voted for it…could never have imagined that this would be used to justify all of these wars that have gone on since then.”

One of those 70 members who voted for the 2001 AUMF, Congresswoman Jan Schakowsky, personally vouched for Massie’s claim. In 2001, Schakowsky said on the House floor, “This resolution has been carefully drafted to restrict our response to those we know to be responsible for this atrocity.” At the press conference, she remarked that if members of Congress couldn’t vote to repeal the outdated authorization and conduct a thorough debate and vote on current wars, “perhaps we shouldn’t have our jobs.”

Over the past nearly two decades, it has become disturbingly obvious that Congress has remained content to abdicate its war powers obligations under Article I of the Constitution. Some have argued that a perpetual war authorization is needed to ensure that the president can address new threats. This is simply not the case. The president retains, under Article II of the Constitution, the power to use military force to repel sudden attacks against the United States, even absent congressional authorization. The framers made this clear in the constitutional debates when they decided to replace Congress’s power to “make” war with the power to “declare” war. An indefinite, limitless congressional war authorization would be an affront to the framers’ intentions and an unconstitutional delegation of Congress’s war powers.

The persistent inaction of the legislative branch concerning the 2001 AUMF has also been a source of growing discontent outside of Congress. Several veterans’ groups, frustrated that 80 percent of current members of Congress have never voted on wars that have killed nearly 7,000 American soldiers, have launched campaigns to repeal both the 2001 and 2002 AUMFs. These include a bipartisan effort from conservative group Concerned Veterans for America and progressive group VoteVets, as well as a pledge to “End Forever War” for which Common Defense is seeking congressional signatures.

So far, endorsers include presidential candidates Elizabeth Warren and Bernie Sanders. Signers of the pledge promise to “debate whether to authorize each new use of military force” and “act to bring the Forever War to a responsible and expedient conclusion.”

Earlier this year, 42 diverse groups from across the political spectrum sent a letter to House Foreign Affairs Committee Chairman Eliot Engel and Ranking Member Michael McCaul urging them to consider and pass Lee’s standalone AUMF repeal bill. “Congress should repeal the 2001 AUMF and hold a public debate as to whether endless war actually serves the American people,” the groups said, “It should not sit idly by while the Executive Branch continues to expand the use of lethal force around the world….”

Yet right up until Lee’s successful committee vote, Congress had sat idly by.

Many members of Congress have expressed sentiments ranging from discomfort to downright ire over the administration’s usurpation of their constitutional authority to determine whether and when the U.S. goes to war. Yet even as the administration continues to creep towards war with Iran, hinting that it would be permitted under the 2001 AUMF, Congress has not passed any legislation to finally declare to the executive branch that such a move is off the table.

Congress this week has an opportunity to begin reversing this troubling trend. A state of war provides the president with extraordinary powers that contribute to the horrific destruction of human life. Two-hundred and fifty thousand civilians have already been killed in our post-9/11 wars. These harms, and the resentment towards the U.S. that they have provoked, have had serious, detrimental consequences for our own security.

Heather Brandon-Smith is the Legislative Director for Militarism and Human Rights at the Friends Committee on National Legislation. Formerly, she served as the Advocacy Counsel for National Security at Human Rights First, and is an adjunct professor of law at the Georgetown University Law Center. Her writing has appeared in The Hill, Lawfare, and Just Security.