Rethinking the 'Authorization for Use of Military Force'

Rethinking the 'Authorization for Use of Military Force'

15 March 2002

Three days after the attacks of September 11th, Congress with only one dissenting vote approved a joint resolution entitled "Authorization for Use of Military Force." In part, it says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In recent weeks the media have reported the remarks of a handful of legislators expressing concern about the endgame and possible expansion of the "war on terrorism." The most pointed comments, so far, come from Representatives Dennis Kucinich and Maxine Waters. According to The Nation, in a recent speech Kucinich said:

We did not authorize an eye for an eye. Nor did we ask that the blood of innocent people, who perished on September 11, be avenged with the blood of innocent villagers in Afghanistan. We did not authorize the Administration to wage war anytime, anywhere, anyhow it pleases. We did not authorize war without end.

The Washington Times reports Waters as saying, "Some of us, maybe foolishly, gave this president the authority to go after the terrorists. We didn't know that he, too, was going to go crazy with it." With US troops still fighting in Afghanistan, already in the Philippines and perhaps soon to be deployed in Georgia and Yemen, I propose to reconsider Congressional approval of the resolution.

The debate recorded in the Congressional Record reveals two discernible camps-enthusiastic supporters and ambivalent supporters of the resolution. Most enthusiastic supporters were forthright and keen to grant to George W. Bush "the fullest authority to employ all of the resources of the United States, to make war on our enemy," as Rep. Henry Hyde put it. Sen. John McCain said, "this mission . . . ends not with the capture or death of Osama bin Laden, but with the destruction of the terrorist networks that threaten our way of life, and the defeat of nations supporting and collaborating with this evil. These nations, too, are our enemies." Rep. Dennis Hastert asserted, "The friends of our enemies are also our enemies, and they will bear equal responsibility."

Hyde, as International Relations Committee chairman, together with the Committee's ranking minority member, controlled the House debate. Responding to a proposed amendment Hyde said: the whole point of the joint resolution we are considering this evening is to clear away legal underbrush that might otherwise interfere with the ability of our President to respond to the treacherous attack on our nation that took place three days ago. Most importantly, we are stripping away the restrictions of the War Powers Resolution. It hardly makes sense to reimpose-and in one case tighten-the restrictions of the War Powers Resolution if our larger objective is to make it easier for the President to respond to terrorism. . . . I for one do not want to restrain our President as he goes about responding to this heinous attack.

Ambivalent supporters of the resolution had misgivings. During the debate Waters worried, "The language of this resolution can be interpreted in different ways." Rep. Jesse Jackson, Jr. said it more pointedly: . . . it is too broad. The literal language of this legislation can be read as broadly as executive interpreters want to read it, which gives the President awesome and undefined power. As written, the resolution could be interpreted, if read literally, to give the President the authority to deploy or use our armed forces domestically. . . . We are . . . granting virtual unlimited authority to the President. According to the non-voting Washington, DC delegate, Eleanor Holmes Norton, the language in the resolution was "limited only by the slim anchor of its September 11 reference, [it] allows war against any and all prospective persons and entities." Rep. Pete Stark said, "This resolution gives the President the power to conduct a war without reporting to or consulting with Congress. Frankly stated, it cedes congressional authority to the President." Rep. John Tierney warned that approval of the resolution would mean Congressional abdication of "its constitutional obligations and responsibilities." Nevertheless Jackson, Kucinich, Stark, Tierney, and Waters all voted in favor of the resolution.

It is certainly laudable that in the face of harsh criticism some members of Congress are finally asserting their Constitutional authority and fulfilling their duty to act as a check on the powers of the Commander-in-Chief. Hopefully, more of them will admit their earlier mistake and rise to the challenge of supporting people of good conscience in the United States and elsewhere in trying to restrain Bush and the American military.

However, they can't credibly claim Bush is abusing his authority when he has merely embraced a reasonable, if expansive, interpretation of the Congressional resolution they approved. Nor is it convincing for them to claim they didn't see it coming. The Congressional Record is peppered with both praise and warning of the overbroad authority granted by the resolution; it reveals that the resolution's passage was a knowing surrender of broad war-making authority to the President.

There are precedents for this: Congress, adopting the 1964 Tonkin Gulf resolution, authorized "the President . . . to take all necessary measures to repel any armed attack against the forces of the United States." It was never rescinded and sanctioned nearly a decade of war that killed millions in Vietnam, Laos, and Cambodia. Likewise, more than ten years on, US forces still attack Iraqi targets under color of the 1991 "Authorization for Use of Military Force Against Iraq Resolution." Honest legislators should also undertake a public examination of the political climate and institutions that once again produced such a knee-jerk abandonment of Congress' Constitutional duty.

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