The U.S. Senate is poised to take the momentous step of voting to repeal one of its most infamous pieces of legislation: the 20-year-old authorization to go to war in Iraq.
That’s because, while the authorization for the use of military force, or AUMF, was drafted as a response to “the continuing threat posed by Iraq,” the apparently futile opposition to its repeal is much more focused on the threat posed by Iraq’s neighbor to the east, Iran.
During a floor debate on the subject Monday, the word “Iraq” was mentioned 116 times, according to the Congressional Record. But not too far behind were references to “Iran” and its capital, Tehran, clocking in at 73 combined. And a statement Tuesday by Senate Minority Leader Mitch McConnell (R-Ky.) opposing the repeal of the AUMF focused almost wholly on Iran.
Regardless of the merits of concerns regarding threats posed by Iran, the tack toward that country spotlights how such fateful decisions can evolve into mission creep. It’s also a testament to how it’s now Congress’s default approach to outsource to the executive branch the difficult decisions involved in its constitutional war powers.
“Without the 2002 AUMF, the president would lose the ability to contain Iran and its aggression,” Sen. John Cornyn (R-Tex.) warned Monday, adding: “In short, American forces are no longer there to counter threats from Iraq. We are now there to counter threats to Iraq. That includes threats from Iran.”
Sen. Lindsey O. Graham (R-S.C.), for his part, said: “It is not in America’s interest to allow the ayatollah in Iran to have more influence and more spaces to govern and more oil to generate revenue from. So if you don’t get that, you are not really following what is going on.”
McConnell in his statement Tuesday cited the recent deadly violence between U.S. forces and suspected Iranian proxies 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,” McConnell said. “Tehran wants to push us out of Iraq and Syria. Why should Congress make that easier?”
In his floor remarks, Sen. Dan Sullivan (R-Alaska) seemed to acknowledge the fact that the AUMF only explicitly targeted Iraq, but he suggested that was missing the forest for the trees.
“Again, what does this have to do with the 2002 AUMF?” Sullivan said. “Everything.”
He went on to cite the Trump administration’s use of the AUMF as part of its justification for killing the notorious Iranian commander Maj. Gen. Qasem Soleimani in Iraq in 2020.
“Some of us are concerned about the very debate we are having here, which is to say: ‘Let’s remove the authorization that we used to kill Soleimani. Let’s get rid of it,’ ” Sullivan said. “Hmm, what kind of signal does that send? Could this signal maybe we are not worried about deterring Iran anymore?”
Republicans have also proposed a series of amendments focused on Iran — Graham’s proposal would have replaced the AUMF with what is effectively a new one explicitly authorizing the targeting of Iranian-backed militias in Iraq — but each has failed.
The text of the 2002 AUMF, which is being singled out for repeal alongside a 1991 version from the first Gulf War, was clearly more constrained. It gave the president the authority to “defend the national security of the United States against the continuing threat posed by Iraq,” and “enforce all relevant United Nations Security Council resolutions regarding Iraq.”
Over the years, though, successive administrations have broadened the understanding of the authorization.
After Saddam Hussein was rather quickly deposed, the Bush administration used the 2002 AUMF to justify not just a war against Iraq, but a U.S. occupation.
While the Obama administration in 2014 stated that it supported the AUMF’s repeal, it soon invoked it to justify a campaign against the Islamic State. It even asserted that the AUMF had “always been understood” to authorize force “for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq.”
The Trump administration borrowed that last phrase in its 2018 war powers report and in its later justification for killing Soleimani. It added that the authorization “contains no geographic limitation on where authorized force may be employed.”
Soleimani’s death led to a round of questioning over just how far the AUMF had been stretched. Ryan Goodman and Steve Vladeck argued in Just Security, “Whatever threat Iran might pose to the United States, even in Iraq, it can hardly be said to be a threat ‘by Iraq.’ ”
In a piece at Lawfare last year, Scott R. Anderson pointed to something that is particularly relevant now — that even as the 2002 AUMF has been used to justify expanded operations, there are other tools at the president’s disposal for combating attacks by Iran. Specifically, the Biden administration has justified its strikes on Iran-backed militias in Iraq and Syria not based upon the 1991 or 2002 AUMFs but on Article II of the Constitution, which permits a president to act on behalf of military service members in self-defense.
The Biden administration has said it doesn’t need the AUMFs, which it does not “rely solely or primarily” upon.
Which is part of the case that Sen. Robert Menendez (D-N.J.) made on the floor Monday. Menendez noted that Biden even in recent days has relied on other authority to strike back at suspected Iranian proxies.
“The president looked at the intelligence, he consulted his advisers, he ordered the strike, and he committed, publicly, to continue to defend against Iranian aggression and to respond to attacks against U.S. forces,” Menendez said. “He did so without — without — relying on the 1991 or 2002 authorizations for use of military force against Iraq.”
Menendez, the chairman of the Senate Foreign Relations Committee, added that lawmakers shouldn’t “turn a debate about repeal and a chance to take a historic step forward into a new backdoor authorization for the use of force against another country.”
In an ideal world, of course, the answer would be simple: To the extent Congress wants Biden or any president to be able to strike back against Iran, it could explicitly authorize that. This is what Graham’s effort would have done. But some senators cautioned against doing something so significant via an amendment, rather than a stand-alone bill. (More than a dozen GOP senators voted against Graham’s amendment, along with all but two Democrats.)
And indeed, such a stand-alone vote could be viewed as provocative. But perhaps the bigger point is that Congress has shown in recent years that it has little appetite for taking difficult votes on such things because it involves more directly owning the results; it’s much more content to let administrations stretch the authority Congress handed over, even if the actions bear little resemblance to the initial stated purpose.
The Senate will apparently vote to pull back some of that authority on Wednesday. But not before it spent the better part of 20 years ceding its own prerogatives to the executive branch.