The United States Senate has voted to repeal the
legal authorisation
for the 2003 war in Iraq, a move hailed by critics who have long called
for legislators to address the legal architecture of Washington’s
post-September 11, 2001, “war on terror”.
The move on Wednesday, which came just more than a week after the 20th anniversary of the US ground invasion of Iraq, represented the first time since the 1970s that the Senate has voted to revoke an authorisation for presidential use of force.
Ordinarily, under the US Constitution, only Congress has the power to
declare war. But Authorisations for Use of Military Force (AUMFs) can
give the president war-making power, short of a formal initiation of
war.
Heather Brandon-Smith, the legislative director for militarism and
human rights at the Quaker nonprofit Friends Committee for National
Legislation (FCNL), called Wednesday’s vote “a really strong step
forward from Congress” that signals the legislative branch has begun to
re-claim its war authorisation and oversight role.
“[Congress is saying] we don’t want this any more,” she said. “It’s
our job to decide when we go to war and who we go to war against. And
we’re going to take this authorisation off the table.”
Finally, the Senate voted to formally end the decades-long Gulf and Iraq Wars. Proud to lead the bill to get this done.
Our troops served courageously. The mission is over, and the war
authorizations against Iraq are now outdated and unnecessary. It’s time
to repeal them.
— Tim Kaine (@timkaine) March 29, 2023
The Senate bill, which was introduced by Senators Tim Kaine and Todd
Young, would repeal both the 2002 Iraq authorisation, approved in the lead-up to the 2003 Iraq invasion, as well as a 1991 Iraq AUMF that coincided with the Gulf War.
It was approved in a vote of 66 to 30 with bipartisan support.
During debate, Senator Bob Menendez called the repeal “a recognition
that Congress not only has the power to declare war but also should have
the responsibility to end wars”.
✓ The White House has also thrown its support behind the repeal,
arguing it does not currently rely on the laws to justify military
operations related to Iraq, where about 2,500 US forces remain
stationed, down from a peak of 170,000 in 2007.
More than ‘good housekeeping’
Scott Anderson, a senior fellow at Columbia Law School’s National
Security Law Program, said the repeal would represent more than just
“good housekeeping” or a “check-the-box exercise”.
“It actually really does subsequently have a legal effect, I think,”
he told Al Jazeera. “When this AUMF is on the books, the executive
branch could point to it and say, ‘We can go to war of any scale any
duration, so long as there is a nexus with Iraq.'”
QAHe added the executive branch has interpreted the authorisation “very broadly”, increasing concerns about future escalation.
✓ The Iraq AUMF had most recently been cited, in part, by the
administration of former President Donald Trump as legal justification
for the 2020 US strike that killed top Iranian general Qassem Soleimani near the Iraqi capital, Baghdad.
The strike was met with sabre-rattling from both sides that risked fomenting direct conflict.
As the Senate debated whether to repeal the authorisations, the
measure’s Republican opponents cited Iran’s influence in the Middle East
as a continuing consideration.
✓ Brian Finucane, senior adviser for the US Program at the
International Crisis Group think tank, pointed out that those remarks
have stirred concern that the authorisations could lead to wider
escalation with Tehran.
Republican Senate minority leader Mitch McConnell, for example, cited
Iran in his statement in opposition to “sunsetting any military force
authorisations in the Middle East”.
“Our enemies in Iran, who have spent two decades targeting and
killing Americans in the Middle East, would be delighted to see America
dial down our military presence, authorities and activities in Iraq,” he
said. “Tehran wants to push us out of Iraq and Syria. Why should
Congress make that easier?
Finucane said, “One of the dynamics playing out here is some of these
members would not be comfortable with straightforwardly advocating a
conflict or a vote on the subject, but want to go through the back door
and misuse this war authorisation.”
“Which is all the more reason that they should be repealed,” he said.
Hopes to turn House
Attention will now turn to the Republican-controlled House of
Representatives, where observers agree the repeal is expected to face a
steeper battle.
Friends Committee for National Legislation’s Brandon-Smith, who advocates for repeal, noted that the chamber has twice voted to do away with the Iraq AUMF under Democratic control, garnering widespread bipartisan support.
Republican leadership has also recently shown a willingness to move
forward with the matter. House Speaker Kevin McCarthy signalled he was
open to supporting the repeal effort and said that there was “a good
chance of one getting through the committee and getting to the floor”.
Anderson, the legal fellow at Columbia, also gave repeal a
“reasonable chance in the House”. But he added, “The obstacle there is
going to be some of the more conventional conservatives in the
Republican Party who are pretty opposed to it.”
“A lot of it will break down to what can be horse traded,” he
explained, “and how much the majority leader is willing to push for
this.”
‘Critical step’
It also remains unclear what bearing the repeal of the Iraq AUMF
could have on efforts to reform a far broader AUMF passed by Congress in
2001.
That law allows the president to use force against nations,
organisations or persons determined to have “authorised, committed or
aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organisations or persons”.
Critics have long said the authorisation has been applied to US military intervention far outside of its intended scope.
A 2022 Brennan Center report argued that the law “has been stretched
by four successive administrations to cover a broad assortment of
terrorist groups, the full list of which the executive branch long
withheld from Congress and still withholds from the public”.
Under the vague wording, observers have said that the 2001 AUMF has
been applied to groups deemed to be affiliated with al-Qaeda in
Afghanistan, Yemen, Libya, Somalia and Syria, among others. The law also
provides domestic authorisation for the continuing detention of
detainees at Guantanamo Bay.
Still, reform of the 2001 AUMF has remained a political non-starter,
due in part to the complexity of how it has been applied and a lack of
political will.
Finucane, the adviser at the International Crisis Group, noted that the 2001 AUMF continues to be employed “as the statutory authority for ongoing uses of military force in Syria, in Somalia and elsewhere, rightly or wrongly”.
But he expressed hope that Wednesday’s repeal of the Iraq War AUMF
would “carry over to a broader legislative reform of the legal
architecture for the United States’ War on Terror”, including the 2001
authorisation.
The FCNL’s Brandon-Smith also acknowledged the 2001 AUMF is “a much
more difficult beast to tackle”, but she said the repeal of the 2002
AUMF can be a “critical first step”.
“I think it’s a galvanising moment to think about where we are as a
country when it comes to military operations abroad,” she said. “And I’m
seeing more and more discussion of the problem of ‘forever war’ as part
of this process of AUMF reform and repeal.”
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