repealing the 1991 and 2002 authorizations for use of military force

Last updated March 29th, 2023

Author: Mariam Malik, Foreign Policy Associate (mariam@progressivecaucuscenter.org)

Introduction

Article 1, Section 8, Clause 11 of the United States Constitution gives Congress the power to declare war and authorize the deployment of U.S. armed forces and military operations. However, past presidents have repeatedly conducted military activities without express authorization from Congress, known formally as an Authorization for the Use of Military Force (AUMF). This explainer examines the various AUMFs still in effect and specifically addresses the Iraq war AUMFs of 1991 and 2002. 

Scope of an AUMF

Typically, an AUMF provides clear guidelines on the scope and parameters of U.S. military operations, essentially, the “reason to go to war.” AUMFs can target specific governments or can be broader, targeting various groups and multiple countries. Once proposed, Congress debates and votes on the parameters of an AUMF.

AUMFs should not exist in perpetuity. Outdated and ambiguous AUMFs risk abuse by the executive branch to be used for military actions outside the intended scope or risk future war by justifying military actions that are inconsistent with the AUMF. Repealing AUMFs that have already served their purpose and no longer apply due to wars being over will be an important step in ending America’s forever wars and reigning in executive branch overreach. 

The 1991 AUMF: The Gulf War

On August 2, 1990, Iraq, led by Saddam Hussein, invaded Kuwait. Soon after Iraq’s invasion, the United Nations Security Council (UNSC) passed a series of resolutions that included an embargo and sanctions on Iraq. On January 14, 1991, Congress passed an AUMF that gave President George H.W. Bush the authority to use military force against Iraq to enforce these UN resolutions and end Iraq’s invasion of Kuwait. The U.S. deployed troops on January 16, 1991, which began U.S. involvement in the Gulf War. Iraq was defeated and retreated from Kuwait on February 28, 1991, effectively ending the war. Three decades later, the 1991 AUMF has not been repealed and remains a legal authority for the president to use. 

The 2002 AUMF: The Iraq War

In response to false claims that Saddam Hussein’s regime had “weapons of mass destruction,” Congress passed the 2002 AUMF on October 16, 2002, and President George W. Bush deployed the first U.S. troops to Iraq on March 19, 2003. Congress outlined two specific objectives in the 2002 AUMF:

1. Defend the U.S. against false threats posed by Saddam Hussein’s regime in Iraq.

2. Enforce relevant U.N. Security Council Resolutions regarding Iraq.

After $2 trillion spent and over 500,000 lives lost, the war in Iraq officially ended in December 2011 when President Barack Obama brought the last U.S. troops home. Despite the war being over for over a decade, twenty years since the initial invasion, and the fact that the government of Saddam Hussein no longer exists in Iraq, Congress has still not repealed the 2002 AUMF.

Broad Use of the 2002 AUMF

After the official end of the Iraq War, both Presidents Obama and Trump used the 2002 AUMF as a legal basis for military engagements not authorized by Congress. In 2014, President Obama cited the 2002 AUMF as an “alternate statutory authority” to the 2001 AUMF (explained below) to justify operations against ISIS in Iraq. Notwithstanding that statement, the Obama Administration maintained that the 2002 AUMF should be repealed.

President Trump asserted that the 2002 AUMF justified military engagement in Iraq, Syria, and elsewhere. He further used the 2002 AUMF to justify a drone strike that killed Qassem Soleimani, one of Iran’s top commanders, in January 2020. Congress responded to Trump’s unilateral action by passing a resolution prohibiting military force against Iran, which President Trump subsequently vetoed. The House also passed the No War Against Iran Act to defund military force against Iran and repeal the 2002 AUMF, but that bill stalled in the Senate.

Military Force under the Biden Administration

In February 2021, President Biden ordered an airstrike in Syria to respond to attacks by Iranian proxies against U.S. bases in Iraq. Congress did not authorize U.S. military forces to engage in hostilities in Syria. President Biden justified this attack by claiming the power to act in self-defense under Article II of the Constitution, rather than relying on an existing AUMF. On June 27, 2021, President Biden ordered another airstrike against Iranian-backed groups on the Iraq-Syria border, again without authorization from or consultation with Congress.

On July 23, 2021, the Biden Administration conducted its second airstrike in Somalia that week. These strikes were unique because they were ordered by Gen. Stephen Townsend, the head of U.S. Africa Command, not President Biden. A bipartisan group of Senators said the executive’s unilateral action in Somalia goes against the intentions of Congress and sets a dangerous precedent. The Biden Administration offered the 2001 AUMF as its legal justification for the attacks in Somalia.

Other military activities under the Biden Administration include:

• A ground raid into Syria on February 3, 2022 which resulted in death by suicide of Islamic State leader, Abu Ibrahim al-Hasmimi al-Qurayshi. Thirteen individuals were also killed, including six children. Congress has not authorized any U.S. military activities in Syria.

• An airstrike in Kabul, Afghanistan that killed Al-Qaeda leader Ayman al-Zawahiri on August 1, 2022. While President Biden did not offer the legal authority his administration had to conduct this strike, legal experts contend  that the administration would likely rely on Article 51 of the U.N. Charter to act in “self-defense” and possibly the 2001 AUMF as the domestic legal basis.

• A third airstrike against Iran-backed groups in Syria on August 24, 2022. Congress has not authorized any U.S. military activities in Syria.

• On March 23, 2023, the Biden Administration conducted an airstrike on facilities in Syria used by Iran-backed groups. The administration said this was in response to an Iran drone strike that killed a U.S. contractor and wounded five U.S. service members. President Biden officially notified Congress of this strike three days later, in line with requirements under the 1973 War Powers Resolution. The President cited power under Article II of the Constitution to act in self-defense and did not cite either the 1991 or 2002 AUMF, since neither provide the authority to attack Iran, its groups, or Syria.

Despite the Biden Administration conducting military operations without congressional approval, about two months into office, and one month after his first airstrike, President Biden committed to working with Congress to pursue a “narrow and specific framework” on congressional war authorizations. Additionally, when asked about AUMFs during his senate confirmation hearing, Secretary of State Antony Blinken stated that it is “long past time we revisit and review them. In many instances, they have been cited and used in countries and against groups that were not part of the original authorization.”

On June 14, 2021, the Biden Administration issued a Statement of Administration Policy supporting H.R. 256, Rep. Barbara Lee’s bill to repeal the 2002 AUMF. The statement acknowledged, “The United States has no ongoing military activities that rely solely on the 2002 AUMF as a domestic legal basis.”

Congressional Activity to Repeal the 2002 AUMF

Congress has taken multiple actions to repeal the 2002 AUMF. Most recently, the Senate voted to repeal the 1991 and 2002 Iraq AUMFs on March 29, 2023. Other efforts to repeal the 2002 AUMF are outlined in Table 1.

Conclusion

AUMFs that have not sunset or been repealed become a blank check the Executive branch can use for military operations that Congress has not authorized. Any military action without congressional authorization is unconstitutional. To finally end America’s forever wars and ensure constitutional integrity, Congress must repeal all AUMFs still in effect.