How to Authorize a Modern War

The 2001 authorization of force may need a rewrite, but modern war isn’t going away.

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October 17, 2011 - Soldiers of Provincial Reconstruction Team Zabul, patrol to a village in the district of Mizan, Afghanistan.

Michael P. Noonan is the Director of the Program on National Security at the Foreign Policy Research Institute in Philadelphia, Pennsylvania, and a veteran of Operation Iraqi Freedom.

A week after the September 11, 2001 attacks in New York and Washington, the United States Senate passed, and former president George W. Bush signed, Public Law 107-40. Known colloquially thereafter as the Authorization for the Use of Military Force, or by the acronym AUMF, this legislation authorized the president:

    (a)  …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.

    (b) War Powers Resolution Requirements.–

(1) Specific statutory authorization.– Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

[[Page 115 STAT. 225]]

(2) Applicability of other requirements.–Nothing in this resolution supercedes any requirement of the War Powers Resolution.

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As the U.S. has moved further and further away from those attacks in elapsed time, the authorization has become more controversial. Some lawmakers today have called for either scrapping or rewriting the legislation.

But the Obama Administration seems to be comfortable with the current authorities. Testifying before the Senate Armed Services Committee yesterday, for instance, Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Michael Sheehan was quoted by the Washington Post as stating:

"At this point we're comfortable with the AUMF as it is currently structured … Right now … it serves its purpose," he said.

"In my judgment, …this is going to go on for quite a while, yes, beyond the second term of the president … I think it's at least 10 to 20 years."

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While some would like to see international terrorism handled as a law enforcement problem or simply fight it abroad with only the intelligence community, the simple fact of the matter is that the 2001 authority was a necessary, if messy, tool to fight a threat that, in some respects, had state-like capabilities without being a state. Declaring war on such an entity had not been foreseen by the founders, nor had the subsequent political and legal tools of the nation been shaped to deal with this kind of war.

Some may argue that treating organizations like al-Qaida as a military threat somehow legitimizes them, but such talk doesn't explain how to cope with a threat that uses ungoverned spaces to carry out training and establish command and control networks to strike at the bureaucratic seams of an adversary such as the United States. None of this is to argue that the U.S. must accept a "forever war," but the goal should be to use the right combination of forces and tools to someday diminish the threat of the transnational actor that is "al-Qaida" so that it can be dealt with only by domestic and foreign law enforcement.

Modifying the existing authority of force, therefore, makes a great deal of sense to allow the right capabilities to be used to deal with the threat that al-Qaida poses. Of course, the enemy gets a vote and al-Qaida has been transforming itself in ways that have sparked this debate, particularly through the spread of affiliates that are simpatico with the ideas and ideals of the formerly unified "Base." Any new authority should be responsive to such shifts in strategy and operations.

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