Is the 2001 Authorization to Use Military Force Constitutional?
Written by: Brien Hallett
What the Constitution Does Not Say About Military Action
As the crisis in Syria approaches a boiling point and the US determines its response, Brien Hallett, the author of Declaring War, looks back at the 2001 inception of the War on Terror and the complicated system of powers and authorizations that launched "the perpetual war."
September 18, 2013 will mark the twelfth anniversary of the 2001 congressional “Authorization to Use Military Force” resolution. The resolution is said to provide the legal basis for the War on Terror. What George W. Bush called “the long war,” and Barack Obama calls “the perpetual war.”
But why is the War on Terror perpetual, unlike any other war in history? Is it because of the changed nature of war, as we are constantly told? Or, is it because of the shaky constitutionality of the 2001 resolution itself?
The first constitutional issue to consider is that such “authorizations” are extra-constitutional. Nowhere in the Constitution is Congress authorized to “Authorization to Use Military Force.” Article I, section 8 is exceptionally clear, “The Congress shall have power. . . to declare war.”
Of course, “Authorizations to Use Military Force” are functionally equivalent to declarations, and everyone knows what Congress meant. But the fact is Congress has played fast and loose with the Constitution. It has stretched the plain meaning of the text almost to the breaking point. Stretching the Constitution is never good.
The second constitutional issue–and this is the heart of matter–is that Congress did not even write a proper “authorization.”
No nation could preserve its freedom in the midst of continual warfare.
Before one declares or “authorizes” war, one must, at a minimum, identify the enemy and articulate the war aims. A war against an unknown enemy for unknown political purposes means that one has no “exit strategy,” no set of criteria to determine when the mission has been accomplished and the war will end. It is–to be exact–a recipe for a perpetual war.
To see this, one has only to compare the 2001 Authorization with the Declaration of Independence:
“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.”
The 2001 authorization contains no political goal, purpose, or criteria. It identifies no enemy. It is instead simply a blank check for a perpetual war.
In contrast, the Declaration of Independence identifies the enemy, King George, and articulates the nation’s peace terms / war aims, independence. Everyone knew whom we were fighting, why were fighting, and when the war would end.
In sum, beginning with a disregard for both the spirit and the letter of the Constitution, the 2001 Authorization fails the minimal test for a responsible declaration of war–naming the enemy and stating the nation’s war aims. As a result, it set the nation on a course for perpetual war. Such wars, James Madison warned long ago, are fatal because “No nation could preserve its freedom in the midst of continual warfare.”
Before next year’s anniversary, Congress must repeal the 2001 Authorization. The preservation of our freedom demands no less.