Will Iran Finally Kill the 2001 AUMF?
No one who voted for that law after the September 11, 2001, attacks, would have envisioned its use against the Islamic Republic of Iran, she said. Her colleague Mac Thornberry, the ranking Republican on the House Armed Services Committee who voted for the authorization, said at the same event that he certainly didn’t envision all the battles the law is currently being used for—including the fight against ISIS and other counterterrorism missions all over the world.
But this is also why it has proven so hard to change, despite seemingly bipartisan agreement that it needs an update. It’s the law that authorizes virtually all of America’s counterterrorism work overseas, and if it simply goes away without being revised, those missions are arguably illegal. But, Slotkin said, there are wide disagreements on what if anything should replace it. Some members don’t want to authorize anything. Some members want to build in restrictions other members find unacceptable. Some want to keep things exactly the same. “We’ve got 50,000 forces in the Persian Gulf right now,” Slotkin said. “If we took away the authorization of military force—every authorization—right now, what would we do? Would we pull them all back by the letter of the law? We’d have to examine that.”
The debate isn’t just about an 18-year-old law: It involves much bigger questions about constitutional powers, and war and peace. These are questions members of Congress acknowledge, but have so far declined to really answer with a debate and a vote. Thornberry himself posed some of them. “When is it war that Congress has to approve? When is it self-defense?” Would Congress have to authorize U.S. military escorts for tankers through the Strait of Hormuz? What about shooting down another country’s drone? What about cyberattacks?
But despite suspicions Pompeo is trying to build the case to use the 2001 authorization against Iran, it’s not clear the administration would even go that route. Pompeo and his Iran adviser Brian Hook have dodged questions about this in open congressional hearings, saying only that whatever action they took with Iran would be under their legal authorities. But Mark Esper, Trump’s nominee to be secretary of defense, said at his confirmation hearing that the 2001 authorization would not apply to Iran. Instead, he said, the president had the authority under Article II of the constitution as commander in chief. “I don’t think there’s a serious attempt to use [the 2001 authorization] for that purpose,” Thornberry said Saturday. “I don’t think anyone would support it.”