POLITICS
11/17/2014 09:09 am ET Updated Nov 17, 2014

Foreign Policy Issues Becoming A Headache? There's An AUMF For That

WASHINGTON -- As Congress wrestles with its role in authorizing the president to use military force overseas, a quick look through the archives reveals that the White House has plenty of other active military authorizations to choose from -- some dating back to the 1700s.

Worried about French ships “on the high seas” disrupting U.S. commerce? There’s a 1798 AUMF for that.

Nervous about pirates in the Caribbean? There’s an 1823 AUMF for that.

Need to shield a Middle Eastern country from communism? There’s a 1957 AUMF for that.

At least seven Authorizations for the Use of Military Force, or AUMFs, are still on the books, passed by centuries of lawmakers to address a range of international threats. Most have never been formally repealed, and few include sunset clauses, leaving the quasi-war declarations to languish in history -- or sit in each successive administration’s back pocket, just in case Algeria tries to capture a U.S. trade ship (in which case, see James Madison’s 1815 AUMF).

“Yeah, probably we can fight the Spanish again,” laughed Sen. John McCain (R-Ariz.), the incoming chairman of the Senate Armed Services Committee, when asked if he knew about all the military actions the president can technically still take under active AUMFs.

The debate over whether Congress needs to sign off on President Barack Obama’s strategy against Islamic State militants has thrust the concept of the AUMF back into the spotlight. Put simply, an AUMF authorizes the president to take military action, usually against another state or group. It’s technically one step shy of an official declaration of war and far less official, but it’s evolved into the modern-day equivalent.

Unlike a declaration of war, though, there’s no real formula for an AUMF.

“As a matter of good legislative hygiene, an AUMF really ought to be a standalone bill that specifically authorizes the president to use military force against a particular enemy for particular purposes,” said Raha Wala, senior defense counsel for Human Rights First.

The authorizations range from 60 words to a few pages, some narrow in scope and others broadly applicable. They can be approved as separate pieces of legislation or slipped into other bills, and they can be applied to military maneuvers ranging from isolated incidents to decades-long wars.

Unless they’re passed with a clear end date, no one is sure when they’re officially over.

“There are a number of AUMFs that have been passed previously that have some set clauses, but absent either a subset clause or a decision to repeal, the statute would remain on the books,” said Jennifer Daskal, a former Justice Department lawyer who specialized in national security law.

A handful of the nation’s authorizations have been repealed by Congress after their purposes were served. But many of them have lingered for centuries, and it’s largely up to the White House to make the call on whether an AUMF is null and void.

“The general theory behind AUMF is it expires when the purposes for which the force is authorized have been fulfilled,” said Wala.

That concept is at the center of an argument on Capitol Hill over the White House’s use of military force against the Islamic State. Obama says he doesn’t need Congress to authorize ongoing U.S. air strikes in Syria and Iraq, or his recent decision to send another 1,500 U.S. troops to Iraq, because he already has that authority under a broad post-9/11 Bush Administration AUMF from 2001. That AUMF was never repealed and gave the president the authority to combat al Qaeda, from which the Islamic State grew.

Sen. Tim Kaine (D-Va.) has been pushing back hard on the president’s claims that he doesn’t need new authorization. He’s laid out a new AUMF that would prohibit the use of U.S. ground troops and would repeal the post-9/11 AUMF. It would also expire after one year.

"Having reasonable sunsets on Authorizations for Use of Military Force ensures regular assessment of the mission to re-evaluate goals and benchmarks and determine whether it is in the national interest to continue as originally intended,” said Kaine. “Absent such a temporal limitation, we risk keeping the country on a perpetual war footing that could last years -- or decades -- beyond the intended scope of the mission.”

In the House, Rep. Peter Welch (D-Vt.) echoed Kaine’s concerns.

“That should be a lesson learned for those of us in Congress,” Welch said. “If you write something that's open-ended, then what may have started out as an effort to fight the 9/11 perpetrators suddenly becomes justification for looking the other way with respect to our constitutional obligations to people held indefinitely in custody. That creates a problem. All kinds of problems.”

But that kind of broad language may just be the new reality. As the world sees fewer and fewer instances of interstate warfare, which historically involved formal declarations and peace treaties, the structure of war is changing. Conflicts involving agile groups and guerrilla warfare require more broad statutes, say some lawmakers.

“The war on terrorism is going to last the rest of my life. It's going to morph several times,” said Sen. Lindsey Graham (R-S.C.). “The idea of dealing with enemies of countries that come and go, to me, the inherent authority of the commander in chief is meant to deal with what we're dealing with here.”

It’s unclear whether lawmakers have the will to pass a new AUMF putting parameters on the White House’s ISIS strategy, though it’s likely they will vote soon to approve the president’s $5.6 billion funding request to bolster the war overseas.

And that vote, Graham said, is the one that counts.

“If you don't like the way the president is using military force, stop the funding,” he said. “Don't restrict the military operations, number of troops, micromanage the war. Just end the funding.”

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