09/15/2014 10:57 am ET Updated Nov 15, 2014

Congress Beware: The 2001 AUMF Could Become Permanent

Thirteen years ago, the Congress passed the 2001 Authorization for the Use of Military Force (AUMF) in a rushed response to the 9/11 terrorist attacks.

The Senate did so in the morning of September 14, unanimously, without debate, just 72 hours after the first plane hit the World Trade Towers. The House followed that evening with only one representative voting "nay." Four days later, on September 18, 2001, George W. Bush signed the statute into law.

The result was an unprecedented application of a legal framework -- a broad use-of-force authorization -- that since the beginning of the 20th century had only been used for armed conflicts between nations. By applying the legal framework to "nations, organizations, or persons" connected with the attacks on 9/11, Congress granted the president significant war authority against non-state actors with no geographical bounds or expiration date.

From the start, the 2001 AUMF took on a life of its own beyond the control of Congress. The Bush administration used it to justify the warrantless National Security Agency domestic surveillance program and the creation of military tribunals. It also served as the legal basis for the indefinite detention of suspected al Qaeda and Taliban operatives in Guantanamo Bay and elsewhere.

The Obama administration used it as the legal foundation for air and drone strikes against al Qaeda "co-belligerents" in places like Pakistan, Yemen and Somalia -- outside of acknowledged battlefields -- even targeting Americans among those groups.

A few days ago, on the eve of the 9/11 anniversary, the nation witnessed the latest creative executive branch application of this old authorization. In a speech to the nation, President Obama used it as the legal underpinning to the claim that he already possesses all the authority he needs to wage a long-term military campaign against ISIL (also known as the Islamic State or ISIS) wherever members of that group may reside. He sees no necessity to ask Congress for permission to wage this new war even though the danger to the nation is not imminent and the military mission he described will extend far longer than allowed by the 1973 War Powers Resolution. Obama didn't cite the 2001 AUMF in the speech, however the President's press secretary explained this legal reasoning in a separate briefing the next day.

But Congress did not intend for the 2001 AUMF to be a decades-long, open-ended, handing over of war authority for use against any terrorist group a president may deem dangerous. The statute authorizes the president to use military force only 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 ..." Even in their shock and haste, lawmakers wrote in one limit: the authorization required a nexus to the 9/11 attacks.

Nor is this original intent ambiguous. As the late Senator Robert Byrd usefully documented in the Congressional Record, their intent is made clear by the stark differences between the proposed first draft of the 2001 AUMF offered by lawyers from the George W. Bush White House and the more limited version agreed upon by Capitol Hill leaders and passed by Congress.

True, the Obama administration had already broadened the scope of the authorization to include "co-belligerents" -- actors seen as fighting alongside al Qaeda in its conflict with the United States -- to legally justify its military strikes on such organizations as Al Qaeda in the Arabian Peninsula (AQAP), and some components of al Shabaab. As previously defined by the Obama administration, a co-belligerent is a group that has both an operational link with the core al Qaeda leadership and an agenda that includes attacking the United States.

By beheading two American journalists, ISIS has arguably joined the ranks of the latter but not the former. To call ISIL a "co-belligerent' or "associate" of al Qaeda is false: the group is actively at odds with the core al Qaeda leadership. If the criterion that a group has an operational link with core al Qaeda is ignored, then we are truly looking at war without end: any administration will be able to rationalize using force against a broad array of extremist groups that had nothing to do with the attacks on 9/11 -- without going to Congress.

This twist is surprising and alarming. Only last year, the Obama administration broached the idea of taking America's counter-terrorism policy off of its wartime footing. In a major speech at the National Defense University in May 2013, President Obama called for refining, and eventually repealing, the 2001 AUMF and spoke of a time when the war with al Qaeda would come to an end. The fact that the same president, when put under intense political pressure to do something about ISIL, opted to skirt Congress' war-making authority and instead expand the scope of the 2001 AUMF, bodes ill for the future.

If Obama is allowed to use acrobatic legal reasoning to expand the 2001 AUMF, thereby reversing himself, so might the next president. Obama's turnabout highlights the real danger: the 2001 AUMF may mutate into a permanent accruement of power to the executive branch.

None of this is to say that the United States, working with the international community and countries in the region, should not use military force to stop ISIL. If, after debate, the U.S. Congress agrees that a sustained military campaign is necessary, it should write a new authorization specific to ISIL, and, learning from the past, include geographical limitations and a sunset date.

At the same time, Congress should set a reasonable sunset date for the 2001 AUMF, timed around the end of combat and pull out of troops in Afghanistan, as 2015 or 2016. To preserve fundamental Constitutional division of powers, it's time to do so.