The prospects are dwindling for lawmakers pushing to repeal and replace a measure used to legally justify a list of counterterrorism military operations since 9/11 after the abrupt collapse of the Afghanistan government and Taliban takeover there.
As the 20th anniversary of the Sept. 11 terrorist attacks approaches, momentum slowly had been building on Capitol Hill around updating the authorization for the use of military force that provided the legal rationale for the U.S. military operation in Afghanistan.
The 2001 AUMF contains no geographic restrictions or time limitations, and has been used by multiple administrations as the legal justification for operations against extremist groups with only scant connections to the perpetrators of the 9/11 attacks. Critics -- who include Democratic progressives and moderates, as well as the libertarian wing of the Republican Party -- argue it was written too broadly, leaving it open to legal interpretations that go far beyond the original intent of Congress.
But many Republicans continue to oppose the push to repeal the AUMF and replace it with one crafted around a more narrow scope.
And their argument that the terrorist threat has not receded sufficiently to merit doing away with the expansive AUMF appears strengthened since the Taliban’s rapid takeover of Afghanistan.
In addition to being catastrophic for the many Afghans who allied with the United States, the takeover means the Pentagon and the U.S. intelligence community will be more in the dark if terrorist groups like the Islamic State grow their presence in the country. The U.S. military will also have to project force from much further away, should new counterterrorism operations be ordered.
“Don’t think for a second that it’s not going to be a safe haven again and that we’re going to have to deal with it,” House Foreign Affairs ranking member Michael McCaul, R-Texas, said in a Monday interview with CNN.
But Scott Anderson, a senior fellow at Columbia Law School’s National Security Law Program, told CQ Roll Call the argument for replacing the 2001 AUMF with a more constrained version is still valid. It is even possible to do so in a way that takes into account the Taliban’s control of Afghanistan, “but it’s a much more narrow eye of the needle to thread” now, particularly from a political viewpoint, he added.
President Joe Biden in a Monday White House speech defending his decision to move all American troops out of Afghanistan, which prompted the precipitous collapse of President Ashraf Ghani’s government, said the United States has experience conducting counterterrorism operations against terrorist groups in countries where the U.S. military has no permanent presence.
However, he also spoke of an evolving terrorist landscape, covering an expansive geographic terrain.
“Today, the terrorist threat has metastasized well beyond Afghanistan: al-Shabab in Somalia, al-Qaida in the Arabian Peninsula, al-Nusra in Syria, ISIS attempting to create a caliphate in Syria and Iraq and establishing affiliates in multiple countries in Africa and Asia,” the president said. “These threats warrant our attention and our resources."
While the White House has said it generally supports Congress replacing the 2001 AUMF with one that is more narrow and specific, the Biden administration has not used its political sway to speed the process – to the frustration of some on the left.
And Biden’s Monday characterization of the terrorist threat has some analysts like Anderson wondering just how narrow an AUMF the administration would support, particularly if it’s one that that includes geographic limitations.
“Their logic, now the way they are describing counterterrorism operations, sounds like the last three presidential administrations who have said, ‘This is why we can’t take away the 2001 AUMF,’” said Anderson, a former attorney-adviser at the State Department.
Forcing the issue
Last week, before the Afghan government’s collapse, senior Senate Foreign Relations member Benjamin L. Cardin filed binding legislation to repeal the 2001 AUMF within one year after bill enactment.
Cardin is expected to offer the measure as an amendment to the Senate’s version of the fiscal 2022 defense policy bill, which will be debated this fall.
While there remains significant differences among reform-minded lawmakers over just what to include in a replacement AUMF, the Maryland Democrat has said he believes establishing a sunset date for the original authorization is necessary to finally force lawmakers to debate the issue and reach some sort of resolution.
In a new statement, Cardin said the immediate focus needed to be on evacuating U.S. citizens in Afghanistan as well as Afghan allies. But he also indicated he would move forward with his repeal legislation.
“I agree with President Biden that the threats against the United States have changed significantly in the last two decades. This is why the AUMF needs to be updated so the authority matches the threats of our time,” he said. “My effort to sunset the AUMF is not new, but Congress has yet to have a thorough discussion about our purpose in Afghanistan, our strategy and the timeline.”
Democrats are worried that time is not on their side.
Next year, political concerns and campaigning ahead of the 2022 midterms will consume more time, and there is a very good chance that Republicans will take back the House -- and even the Senate. Once Democrats lose control of even one chamber, they would lose their ability to control the legislative agenda, and with it their best chance of replacing the 2001 authorization before the 2024 presidential election.
Now, that limited time for action has been further compressed.
Many of the national security-focused Democrats who would otherwise have been expected to play key roles in the debate around repealing and replacing the 2001 AUMF are likely to be spending considerable time in the weeks and months ahead investigating what led to the intelligence and contingency planning failures on the part of the Biden administration that resulted in the ongoing evacuation debacle in Kabul. The chairmen of the Senate Foreign Relations, Armed Services and Intelligence committees have all announced they will probe the matter, as has the head of the House Foreign Affairs Committee.
But advocates for repealing the post-9/11 authorizations are still pressing forward, including several veterans groups.
“Congress has shirked their responsibility for a number of years now and that is why we found ourselves in the situation that we are in today,” Lawrence Montreuil, who leads the American Legion’s legislative division, said in an interview. “I think it is beyond time for the clock to start on replacing the post-9/11 AUMFs."