Why is US repeal of Iraq war authorisation still relevant?

United States President Joe Biden’s administration as well as many bipartisan US legislators and advocates have said they want the Authorization for Use of Military Force Against Iraq (AUMF) repealed.

The authorisation was signed by former President George W Bush in 2002, enabling the US invasion and occupation of Iraq as the US’s two-decade “war on terror” went into full swing. It has increasingly been condemned by critics for giving the US executive branch broad and menacingly vague military powers.

On Thursday, a group of bipartisan legislators in both the House and Senate launched their latest effort to do away with the 2002 law, reintroducing a bill to repeal the authorisation.

This attempt follows a period between 2021 and 2022 that advocates said represented the best opportunity yet to pass a repeal. However, the path has likely narrowed with Republicans taking control of the House of Representatives following last year’s midterm elections.

“All of these groups are saying ‘enough is enough’. Get this appeal off the books. Put Congress back in the business of making that hard decision about when we go to war,” Heather Brandon-Smith, the legislative director for Militarism and Human Rights at Friends Committee on National Legislation (FCNL), a Washington lobby group, told Al Jazeera.

She noted that the 20th anniversary of the 2003 US invasion of Iraq was coming up in March.

“People across the political divide seem to really want to see Congress making the decision and not the president deciding when, where and against whom the US goes to war,” she said. “That hasn’t changed.”

Critics have said the AUMF’s reason for being became increasingly dubious after the US officially ended, in 2011, its combat operations in Iraq – which saw US troops in the country surge to a peak of 170,000 – as well as combat operations there against ISIS (ISIL) in 2021.

The repeal of the 2002 AUMF – along with reformation of the geographically broader and more politically fraught 2001 AUMF, which allows the US executive to pursue military action against individuals or groups deemed connected to the 9/11 attacks – have been at the centre of efforts to restructure the legal architecture that has guided US military action abroad in recent decades.

Why is repeal still relevant?

The US Congress, which has the sole constitutional power to declare war, has not done so since 1941 when it approved declarations against Japan in the wake of the Pearl Harbour attacks and, days later, against Nazi-controlled Germany and axis-allied Italy.

Instead, to involve the US military in conflict abroad, presidential administrations have relied on Article 2 of the US Constitution, which grants limited war powers to the executive branch, and legislation passed by Congress – usually the so-called Authorizations of Use of Military Force (AUMFs).

Today, @SenToddYoung, @RepSpanberger, @RepBarbaraLee, @RepChipRoy, @TomColeOK04, and I are introducing legislation to repeal the 1991 and 2002 Gulf and Iraq war authorizations.

It’s time to end endless wars.

— Tim Kaine (@timkaine) February 9, 2023

AUMFs “authorise major war”, according to Scott Anderson, a senior fellow at Columbia Law School’s National Security Law Program. They provide legal and political cover amid lingering questions over the limits of a president’s constitutional war powers and, most significantly, cover for questions over whether presidents can “take action that risks a major war without congressional authorisation”.

“The 2002 AUMF, at least in regards to things that intersect with Iraq, opens up the possibility of the president being able to lean on it and initiate a major war without really having to go back and check with or ensure they have the support of the most democratic branch of government – Congress – or just, kind of, more generally, a broader political support,” Anderson said.

“Now, are our presidents going to do that routinely? No, they’re not. But there are circumstances where they might.”

Most recently, the administration of Former President Donald Trump used the 2002 Iraq AUMF, in part, to justify the deadly drone strike on Iranian General Qassem Soleimani on the outskirts of the Iraqi capital Baghdad in early 2020.

The killing led to US-Iran sabre rattling that risked escalating into full-fledged war.

The Biden administration has said it does not rely on the 2002 AUMF to solely justify any of its military actions in Iraq.

Anderson, who previously served as the legal adviser for the US embassy in Baghdad, noted that despite this, Iraq remains a particularly significant arena when it comes to the potential for wider escalation. That is largely due to the presence of Iran-aligned militias in Iraq, Iran’s outsized involvement in its neighbour and ongoing political and economic crises.

The US has 2,000 troops in Iraq, operating in advisory roles. Foreign forces are regularly targeted by armed groups calling for their removal.

Meanwhile, Anderson said, the executive branch in recent years has “articulated an interpretation” of the 2002 Iraq AUMF that allows the president to use military force in “combating terrorists” in the country or “addressing any sort of threat to a stable government”.

This creates several possible paths to escalation under a future administration, he said.

“The US relationship with Iran, I think, is one of those very challenging ones, where you could see a particular president feeling liberated by the 2002 AUMF, taking riskier action, or pushing the envelope more in terms of fighting Iran”.

Where does repeal stand?

Repeal of the 2002 AUMF has had uniquely bipartisan support in Congress in recent years, with a standalone bill introduced in 2021 by Representative Barbara Lee passing the Democrat-controlled House with the support of 49 Republicans.

While introducing the most recent legislation, which would also repeal the 1991 AUMF that authorised the US’s involvement in the Gulf War, Lee said it “was far past time to put decisions of military action back in the hands of the people, as the Constitution intended”.

The legacy of this nation’s forever wars lives on in the form of the AUMFs—dangerous, overly broad war authorizations.

I've been fighting to repeal them for over 20 years, and @timkaine @sentoddyoung @repchiproy & I are almost at the finish line. https://t.co/GndRzWuH47

— Rep. Barbara Lee (@RepBarbaraLee) February 9, 2023

Past congressional efforts have made for some interesting bedfellows, with several Trump-aligned legislators in the Republican Party’s farthest-right reaches – including Representatives Matt Gaetz, Marjorie Taylor Greene and Lauren Boebert – joining the Democratic majority in pursuit of repeal.

In 2021 in the Senate, Tim Kaine, a Democrat, and Todd Young, a Republican, also introduced a stand-alone bill that went on to gain 11 Republican co-sponsors, making it poised to overcome the 60-vote threshold needed to avoid a filibuster in a congressional session where Democrats still controlled both chambers.

Kaine and Young have again teamed up in introducing the newest legislation in the Senate.

BREAKING: @SFRCdems just passed legislation to repeal the 2002 AUMF –– a major victory in our fight to end forever wars.

Glad to see @TimKaine & @SenatorMenendez build on our momentum in the House. Let's get this done.

— Rep. Barbara Lee (@RepBarbaraLee) August 4, 2021

In 2021, Senate Majority Leader Chuck Schumer also gave his full-throated support for the repeal, promising to bring the bill to a vote and, with the Biden administration giving its approval to the effort, the course appeared to be charted.

Nevertheless, a Senate floor vote on the standalone repeal never came to pass, likely due to concerns over how much limited floor-time debate over the legislation would eat up, according to analysts. While Senators Kaine and Young sought to include an amendment to the Senate version of the 2023 NDAA – as was approved in the House – the effort was unsuccessful.

In the waning days of 2022, anti-war groups made a last-minute appeal to Schumer.

“In repealing the 2002 Iraq AUMF – whether by standalone vehicle or through the omnibus spending package – Congress would finally reclaim its constitutional war powers in a manner both deeply significant and increasingly uncontroversial,” 37 groups said in a letter to the top Democrat.

“We urge you to seize this opportunity to get it off the books for good.”

‘Opportunities remain’

Analysts and advocates have said despite new obstacles, hope remains in the new congressional term, with Democrats maintaining a 51-seat majority in the Senate and Republicans taking 222 seats in the House, giving them a slight majority over Democrats’ 212.

In the Senate, all 11 Republican co-sponsors of the 2022 repeal bill remain in office, while 40 of the 49 Republicans who supported the House bill in 2021 have kept their seats.

Still, observers have said it remains unlikely House Republicans would bring such legislation to a vote, with large portions of the Republican Party remaining opposed.

That means pressure would almost surely have to come from Senate, with FCLN’s Brandon-Smith saying the best chance would likely be including repeal as an amendment to so-called “must pass” legislation, such as an NDAA or other omnibus spending packages.

Despite the missed opportunities for repeal last year, she struck an optimistic tone.

“The fact is that there are still bipartisan majorities in both the House and the Senate who want to see this AUMF off the books … So we are still in quite a strong position when it comes to support in Congress,” she said, “which provides opportunities”.