Ending the (Actually) Longest War

President Obama said in his Veterans Day remarks at Arlington National Cemetery Monday that when responsibility for security in Afghanistan is transferred next year, America’s “longest war” will come to a close. But America’s longest war, the ongoing war on terror, was authorized by a Congressional resolution—the Authorization for Use of Military Force—whose alteration or repeal he endorsed six months ago but that will almost certainly endure. The promised “engagement” with Congress about its repeal has not occurred because a variety of actions and policies in the war on terrorism, from drone attacks to detention, depend on the AUMF remaining in force. The longest war persists for reasons of the longest motive: power.

In his May speech at the National Defense University—now six months ago—Obama explained:

The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.

If the Afghan war is coming to an end and core al Qaeda is a shadow, the justification for the AUMF is at an end too. It did not license presidents to fight terrorism simply. Stunningly, in fact, its preamble ceded the claim that they possessed that authority inherently. Instead, it specifically licensed the prosecution of conflict only against those responsible for the 9/11 attacks. Indeed, Congress specifically rejected the Bush Administration’s breathtaking request for sweeping authority “to deter and pre-empt any future acts of terrorism or aggression against the United States.”

Moreover, the speech alludes to the key fact, which is the AUMF’s use today against those who “label themselves” al Qaeda but in fact had no connection to 9/11. In May testimony before the Senate Armed Services Committee, one Defense Department official, responding to approving queries from Senator Lindsey Graham, asserted that the AUMF would authorize “boots on the ground” in places as diverse as Yemen and Congo.[1] Senator Angus King correctly observed that this would render the war power a “nullity.”

Congress is going to have to recognize, sooner or later, that this is precisely what it has already done in allowing the AUMF to drag on unquestioned as long as it has. Congressman Adam Schiff has introduced legislation keying the expiration of the AUMF to the end of combat operations in Afghanistan. The AUMF may then need to be replaced to reflect the ongoing threat of terrorism. But the deliberative process of substitution, spurred by the knowledge of an end date, would itself be healthy. Congress surely would not cede as many powers today as it did in the fearful aftermath of 9/11.

We also now know the full range of policies for which an AUMF will be used as cover. Indefinite detention is one; drones another. The persistence of the AUMF has allowed Congress to evade its responsibility to deliberate and legislate in these areas. The difficulty of doing so—it involves tradeoffs few want to confront—is no reason for the evasion.

The foremost tradeoff among those—and striking these balances is Congress’ responsibility—is that between liberty and security. The overwhelming post-9/11 quest for the latter caused Congress to accept less of the former. The imbalance no longer reflects realities on the ground or the constitutional values we ought to accept. To be on a permanent wartime footing is forever to sacrifice liberty to security. To end it is—let us be adults and acknowledge this—to accept more risk in exchange for more freedom. It is time.

 

[1] See testimony, page 19. On page 29, the official, Assistant Secretary Michael Sheehan, attempts to backtrack and assert he did not refer to the AUMF. The reader may draw his or her own conclusions, but Graham’s initial line of questioning plainly refers to that authorization.

Greg Weiner, who teaches political science at Assumption College, is a former political consultant and the author of Madison’s Metronome: The Constitution, Majority Rule and the Tempo of American Politics. He is currently working on a book on the political thought of Daniel Patrick Moynihan.

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Comments

  1. R Richard Schweitzer says

    Your argument is not frivolous, but would carry more conviction (rhetoric) if you would give some more concise explanation for your conclusion that *** “it is time.”

    • Kevin R. Hardwick says

      A further thought. I may be imagining this, but I thought I detected in Greg’s post a Madisonian distrust of majority decision making, especially when majorities act at times of heightened anxiety. The fact that the anxiety was (and is) justified does not mitigate the deeper point that majority will can very have imprudent or unsafe consequences. To my reading of Madison, this is if not *the* central concern running through Madison’s constitutional thought, certainly among the most important.

      • Greg Weiner says

        One of the interesting phenomena of recent years seems to have been that majorities have been calmer and more deliberate — prudential even — than policymakers on national security. It was the public who restrained policymakers on Syria, for example, and I detect more public than Congressional skepticism of, e.g., NSA phone/email harvesting. That said, I think the AUMF is certainly attributable in part to an inflamed public. But policymakers were inflamed too, and given the uncertainties of the environment then, it is hard to blame them. In any case, we have a far better grip on the actual threat environment now — indeed, we have done a great deal to shape it — and are consequently better positioned to balance liberty and security. We can’t have absolute quantities of both, and it seems to me the AUMF is predicated — again, understandably in the immediate aftermath of 9/11 — on doing whatever is necessary for security rather than calibrating that against the costs to liberty. (By the way, for those who say the President needs free-wheeling authority because Congress can’t react quickly to crisis, witness an AUMF passed within 72 hours and a PATRIOT Act passed within six weeks of 9/11. The real question may be whether they are capable of applying the brakes.)

        I would slightly reformulate Kevin’s characterization of Madison’s concern, though in a way that I think is compatible with what he (Kevin) said: His question is how to arrange institutions such that majorities are likeliest to behave reasonably. That is how he squares a commitment to majority rule with concerns about abuses. But he would also be the first to admit that where fear reigns, there is only so much you can do. Where fear reigns *and* there is the technological capacity to act quickly — which, in his day, there was not, thus creating a natural barrier to impetuosity — you can do even less. At some point we are going to have to recover the virtue of patience if the Madisonian system is going to work.

  2. Kevin R. Hardwick says

    Richard–

    As I read the essay, Greg makes the case in the paragraph that begins “If the Afghan war is coming to an end and core al Qaeda is a shadow, the justification for the AUMF is at an end too.” “It is time” thus has a double meaning: 1.) it points to the end of the Afghan war as a propitious tim to reconsider policy; and 2.) it suggests that it is prudent that a policy made in time of crisis should be reconsidered once the crisis is past. I don’t detect a rhetorical lack of conviction. Help me see what I am missing?

  3. R Richard Schweitzer says

    Of course an entirely plausible presentation could be made along the lines that Professor Hardwick describes.

    However, to be concise, there would need to be more than a suggestion that “crisis” rather than a change in conditions (e.g., the non-state enemy, the metastasis of the hostile elements, the “sanctuaries” for terrorist diaspora, etc., etc.) is the sole justification or raison d’être for the existing authorizations.

    That is not to say that a concise argument cannot be made, with rhetorical effect. In fact that is hinted at in the reference to a possible “substitute” for AUMF. The case is not so much about “Liberty vis-à-vis security” or freedom as it is about the locus of power between the legislative and executive under our system. The recent public reactions concerning involvement in Syria are a demonstration that expression of freedom is not impaired.

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