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Are We Still at War?
Congress should update its military-force authorization.

U.S. Army Sgt. 1st Class Robert Russell, Zabul province, Afghanistan, August 22, 2011 (USAF/Grovert Fuentes-Contreras)

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Andrew C. McCarthy

What changed after 9/11 was not our rhetoric or the unremarkable fact that we had enemies. What changed, what took the nation to war, was the formal Authorization for Use of Military Force by Congress.

It was the 2001 AUMF, an act of Congress’s constitutional war power, that vested the commander-in-chief with authority “to use all necessary and appropriate force.” It was the 2001 AUMF that triggered combat operations in Afghanistan, where al-Qaeda was then headquartered. The AUMF is what rendered legitimate such wartime tactics as subjecting enemy combatants to drone strikes, indefinite detention, and military commissions.

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Moreover, because the AUMF spelled out no geographical boundaries, it authorized combat operations anyplace in the world where the enemy could be found. Here, however, is where things get fuzzy because of the vast difference between our war rhetoric and what the AUMF actually says about the enemy.

The enemy is not “terror.” And, contrary to popular belief, the enemy is not even al-Qaeda. As I reiterated in last weekend’s column, the AUMF does not proclaim an open-ended license to attack anyone affiliated with al-Qaeda. In fact, the AUMF does not mention “al-Qaeda” at all. Have a look at it, here. It defines the enemy as follows:

Those nations, organizations, or persons [that the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.

The commander-in-chief’s license to wage war is plainly circumscribed by the 9/11 atrocities. Of course, that does not make the AUMF what any sensible person would call “narrow.” After all, it trusts the commander-in-chief to judge which “nations, organizations, or persons” were complicit in the 9/11 operation — no additional congressional findings are needed.

While one person’s judgment can be quite elastic, the president’s need not be in order to make the AUMF extremely capacious. It is broad on its own terms. For example, al-Qaeda is the organization that was principally complicit in 9/11, and thus it may be attacked anyplace, anytime. The AUMF also undoubtedly authorizes warfare against the Taliban, al-Qaeda’s former host, even though the president, in his discretion, chooses not to regard the Taliban as an enemy — indeed, our government has not even designated the Afghan Taliban as a terrorist organization, much less declared war against it. In addition, the AUMF would authorize war against Iran. The 9/11 Commission all but expressly implicated the mullahs in the 9/11 plot, despite the disinclination of President Obama, of President Bush before him, or of Congress to connect those dots.

Nevertheless, as broadly as the 2001 AUMF could be interpreted, it is not boundless. It clearly requires any use of force to be rooted in 9/11. Only those who plotted and executed the 9/11 attacks, or who harbored those who did so, are legitimate targets.

Some claim there is more play in the AUMF’s joints. They point out that the AUMF goes on to explain Congress’s desire “to prevent any future acts of international terrorism against the United States.” But this is an explanation of Congress’s motive for the authorization spelled out in the AUMF; it does not expand that authorization. Of course it is true that, 9/11 aside, Congress does not want terrorists to attack us. But that does not alter the fact that, in the AUMF, Congress permitted combat operations only against terrorists culpable for 9/11, not against any terrorist who might ever attack us. Even the reference to “future acts of international terrorism” seized on by expansive constructionists is expressly limited to acts that might be committed “by such nations, organizations or persons” complicit in the 9/11 attacks or in the harboring of 9/11 attackers.

What does all this mean for drone attacks, the hot topic du jour? In recent days, the debate over these targeted killings — and the collateral killings that inevitably attend them — has strayed from its original focus on the assassination of American citizens who collude with al-Qaeda. Attention is now drawn to an equally urgent subject: the Obama administration’s startling intensification of the drone campaign.



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