The United States Senate has voted to repeal the legal authorisation for the 2003 war in Iraq, a move hailed by critics who have long called for legislators to address the legal architecture of Washington’s post-September 11, 2001, “war on terror”.
The move on Wednesday, which came just more than a week after the 20th anniversary of the US ground invasion of Iraq, represented the first time since the 1970s that the Senate has voted to revoke an authorisation for presidential use of force.
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Ordinarily, under the US Constitution, only Congress has the power to declare war. But Authorisations for Use of Military Force (AUMFs) can give the president war-making power, short of a formal initiation of war.
Heather Brandon-Smith, the legislative director for militarism and human rights at the Quaker nonprofit Friends Committee for National Legislation (FCNL), called Wednesday’s vote “a really strong step forward from Congress” that signals the legislative branch has begun to re-claim its war authorisation and oversight role.
“[Congress is saying] we don’t want this any more,” she said. “It’s our job to decide when we go to war and who we go to war against. And we’re going to take this authorisation off the table.”
Finally, the Senate voted to formally end the decades-long Gulf and Iraq Wars. Proud to lead the bill to get this done.
Our troops served courageously. The mission is over, and the war authorizations against Iraq are now outdated and unnecessary. It’s time to repeal them.
— Tim Kaine (@timkaine) March 29, 2023
The Senate bill, which was introduced by Senators Tim Kaine and Todd Young, would repeal both the 2002 Iraq authorisation, approved in the lead-up to the 2003 Iraq invasion, as well as a 1991 Iraq AUMF that coincided with the Gulf War.
It was approved in a vote of 66 to 30 with bipartisan support.
During debate, Senator Bob Menendez called the repeal “a recognition that Congress not only has the power to declare war but also should have the responsibility to end wars”.
The White House has also thrown its support behind the repeal, arguing it does not currently rely on the laws to justify military operations related to Iraq, where about 2,500 US forces remain stationed, down from a peak of 170,000 in 2007.
More than ‘good housekeeping’
Scott Anderson, a senior fellow at Columbia Law School’s National Security Law Program, said the repeal would represent more than just “good housekeeping” or a “check-the-box exercise”.
“It actually really does subsequently have a legal effect, I think,” he told Al Jazeera. “When this AUMF is on the books, the executive branch could point to it and say, ‘We can go to war of any scale any duration, so long as there is a nexus with Iraq.'”
He added the executive branch has interpreted the authorisation “very broadly”, increasing concerns about future escalation.
The Iraq AUMF had most recently been cited, in part, by the administration of former President Donald Trump as legal justification for the 2020 US strike that killed top Iranian general Qassem Soleimani near the Iraqi capital, Baghdad.
The strike was met with sabre-rattling from both sides that risked fomenting direct conflict.
As the Senate debated whether to repeal the authorisations, the measure’s Republican opponents cited Iran’s influence in the Middle East as a continuing consideration.
Brian Finucane, senior adviser for the US Program at the International Crisis Group think tank, pointed out that those remarks have stirred concern that the authorisations could lead to wider escalation with Tehran.
While Congress debates sunsetting some military authorities in the Middle East, Iran-backed terrorists aren’t sunsetting their war against us.
Pres. Biden must change his failed approach, rebuild deterrence, and protect Americans.
Full statement: https://t.co/RTdLJ9j1Vs
— Leader McConnell (@LeaderMcConnell) March 28, 2023
Republican Senate minority leader Mitch McConnell, for example, cited Iran in his statement in opposition to “sunsetting any military force authorisations in the Middle East”.
“Our enemies in Iran, who have spent two decades targeting and killing Americans in the Middle East, would be delighted to see America dial down our military presence, authorities and activities in Iraq,” he said. “Tehran wants to push us out of Iraq and Syria. Why should Congress make that easier?
Finucane said, “One of the dynamics playing out here is some of these members would not be comfortable with straightforwardly advocating a conflict or a vote on the subject, but want to go through the back door and misuse this war authorisation.”
“Which is all the more reason that they should be repealed,” he said.
Hopes to turn House
Attention will now turn to the Republican-controlled House of Representatives, where observers agree the repeal is expected to face a steeper battle.
Friends Committee for National Legislation’s Brandon-Smith, who advocates for repeal, noted that the chamber has twice voted to do away with the Iraq AUMF under Democratic control, garnering widespread bipartisan support.
Republican leadership has also recently shown a willingness to move forward with the matter. House Speaker Kevin McCarthy signalled he was open to supporting the repeal effort and said that there was “a good chance of one getting through the committee and getting to the floor”.
Anderson, the legal fellow at Columbia, also gave repeal a “reasonable chance in the House”. But he added, “The obstacle there is going to be some of the more conventional conservatives in the Republican Party who are pretty opposed to it.”
“A lot of it will break down to what can be horse traded,” he explained, “and how much the majority leader is willing to push for this.”
It also remains unclear what bearing the repeal of the Iraq AUMF could have on efforts to reform a far broader AUMF passed by Congress in 2001.
That law allows the president to use force against nations, organisations or persons determined to have “authorised, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organisations or persons”.
Critics have long said the authorisation has been applied to US military intervention far outside of its intended scope.
A 2022 Brennan Center report argued that the law “has been stretched by four successive administrations to cover a broad assortment of terrorist groups, the full list of which the executive branch long withheld from Congress and still withholds from the public”.
Under the vague wording, observers have said that the 2001 AUMF has been applied to groups deemed to be affiliated with al-Qaeda in Afghanistan, Yemen, Libya, Somalia and Syria, among others. The law also provides domestic authorisation for the continuing detention of detainees at Guantanamo Bay.
Still, reform of the 2001 AUMF has remained a political non-starter, due in part to the complexity of how it has been applied and a lack of political will.
Finucane, the adviser at the International Crisis Group, noted that the 2001 AUMF continues to be employed “as the statutory authority for ongoing uses of military force in Syria, in Somalia and elsewhere, rightly or wrongly”.
But he expressed hope that Wednesday’s repeal of the Iraq War AUMF would “carry over to a broader legislative reform of the legal architecture for the United States’ War on Terror”, including the 2001 authorisation.
The FCNL’s Brandon-Smith also acknowledged the 2001 AUMF is “a much more difficult beast to tackle”, but she said the repeal of the 2002 AUMF can be a “critical first step”.
“I think it’s a galvanising moment to think about where we are as a country when it comes to military operations abroad,” she said. “And I’m seeing more and more discussion of the problem of ‘forever war’ as part of this process of AUMF reform and repeal.”