The Authorization for the Use of Military Force (AUMF), or Public Law 107-40, was passed as a reactionary measure to the horrific attacks of September 11, 2001. It is difficult to overstate the aggregate emotion of the American public (and the world for that matter) as a consequence of the day’s events. I was in-between classes as a senior in high school when I joined a group of my classmates gathered around a TV set with a live feed of the World Trade Center’s north tower billowing smoke. Not long after I showed up, what turns out to be United Airlines Flight 175 crashed into the south tower. We watched it hit in real time. Our high school commons room was in shock. Statements like "what the fuck is going on," "holy shit," and "oh my God," were bouncing off the walls. Nobody knew what was happening, what to think, or what to do. It took me about half an hour to get in touch with my dad (a pilot for Delta Air Lines) who thankfully was not airborne at the time. I can only imagine what it was like in New York, Washington D.C., or amongst the various government and private agencies tasked to respond to a situation whose gravitas was generally beyond anticipation. It is based on such shocking circumstances that the term "terrorism" is aptly used, and separates itself in a subjective way from "murder." No doubt the resultant emotional duress of the moment played a leading role in drafting the AUMF which was brought to the floor of the United States Congress three days later. It passed with overwhelming support (420 ayes, 1 nay, and 10 not voting in the House of Representatives; 98 ayes, 0 nays, and 2 present/not voting in the Senate). The lone vote against the measure came from Representative Barbara Lee (D-CA) who warned against "an open-ended war with neither an exit strategy nor a focused target." The text grants the president the following unilateral power:
"the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."(Emphasis mine)
Without a doubt, there are a myriad of individual, interest group, and ideological motivations anytime legislation is passed, however, the larger body politic seems to have been focused at the time on providing a rational response to a horrific attack. Based on the circumstances of the moment, my conclusion is that the big picture intent was to find the individuals responsible for the attack and bring them to justice. That said, with the benefit of 20/20 hindsight, Mrs. Lee’s words of warning seem prophetic. What can we learn after 13 years of perpetual war in the Middle East, Africa, and the South Pacific? The bottom line, and the theme of this op ed., is that the so-called "war on terror" has metastasized from what appeared under duress to be a rational response to a horrific attack, into a license to kill anyone, anywhere, anytime, indefinitely, without further debate. It is time to reassess the AUMF, evaluate the unintended consequences of its real world application, measure it against first principles, and ultimately learn from the mistake that is the "war on terror."
Problems with the AUMF are multifaceted and complex. Among the worst consequences of this atrocious piece of legislative tyranny are as follows:
The authorization is indefinite. As Representative Lee specified, there is no exit strategy. It should therefore not surprise us that the so-called "war" rages on in its 13th consecutive year.
The authorization is generic. Among the "open-ended" facets are the personnel that the authorization applies to. "Planned, authorized, committed, or aided … or harbored" could be any country in the world, and any person living in it – including the United States. That is exactly who it has been applied to in practice. "War" in Afghanistan became "war" in Yemen, Pakistan, the Philippines, Somalia, Libya, Mali, and an untold number of emerging "terrorist safe-havens" in Africa, the Middle East, and around the world. As an alternative, and in retrospect, the United States could have waited several months to summarize the available evidence, publish a public list of the specific personnel it believed to be involved in the September 11th attacks, and then combine the efforts of the international body of nation-states, the intelligence communities, and special operations forces to bring those specific people (and only those specific people) to justice. End of story. It should be noted that the United States is not justified in killing personnel that had nothing to do with September 11 (such as the oppressive Taliban regime). Although the Taliban is a group of Islamic thugs, they did not attack the United States on September 11th. It is fair to argue that the Taliban did not relinquish Al Qaeda members, but it is not fair to use such an argument as a means to transform the AUMF into a tool for regime-change and nation-building in Afghanistan. Similarly it is not fair to label the Taliban an international terrorist organization when they have no such history. Interestingly enough, the American government did not have anything to say about the internal affairs of the despotic Taliban government prior to that September day. The number of incidental deaths in Afghanistan and the surrounding countries as a consequence of the AUMF metastasizing into a full-blown and seemingly permanent international military occupation is not justified. The fact that such a condition is exactly what has happened since its passage is why the AUMF was a bad idea from the start.
Application of the authorization flies in the face of international law. One of the most important tenets of international law is respect for neutral parties. The manner in which the AUMF was applied, i.e. "you’re either with us or against us," throws this entire concept in the trashcan.
- The authorization represents the death of an 800 year tradition that started with the Magna Carta in the 13th century. One of the great tenets of the Magna Carta is the principal that states a presumption of innocence. That is, you are innocent until found guilty in a court of law by a jury of your peers. The entire system of jurisprudence is built around this pillar and it is something that should never be compromised under any circumstances. Quite frankly, it is a principle worth dying for. It is not a principle worth killing to forget. To my point, the extrajudicial internment camps around the world (the most well-known of which is Guantanamo Bay in Cuba) make a mockery of this principle. The idea that the United States government can hold a Taliban commander in Guantanamo Bay indefinitely as a quasi-prisoner of war is absurd. If these prisoners are so dangerous and have committed so many crimes then it should not be difficult to convict and sentence them in a court of law. The fact that this is not done simply exposes the fact that the emperor has no clothes. There is no such thing as a "war on terror" in international law. This is a propaganda tool to manufacture consent.
The authorization has re-institutionalized the Star Chamber. The Star Chamber was a secret British court abolished in 1641. At best, the Star Chamber was designed to ensure enforcement of the common law against prominent Englishmen whose influence was thought to preclude a publicly transparent court from convicting them. Over time, however, the Star Chamber’s secrecy (a court devoid of witnesses and indictments, i.e. formal charges) was used as an instrument of injustice and corruption. With the abolition of the Star Chamber, all Englishmen were afforded the same procedural rights, and the results (whether just or unjust) were at least known to the public and subject to public support or disdain. A welcomed consequence was the fact that even the "worst enemy" of the crown (political opponents or even those accused of assassination attempts on the king or queen themselves), were afforded the right to a public trial. If such individuals fled Great Britain they could be retrieved only with a warrant of arrest. Assassination was strictly forbidden because it violated the tenets of the common law (the idea that all men and women are innocent until proven guilty beyond a reasonable doubt). This reality, although perhaps inconvenient for the king, prevented him from using his power to arbitrarily to oppress political opposition and/or suppress dissent. Simply put, it protected individual liberty. Assassinating suspects is the status quo in the American drone war (courtesy of the AUMF). This is unjust, immoral, and counterproductive. Further complicating the issue is the fact that four of these personnel are known to be American citizens. The fact that they were executed outside of a battlefield under the auspices of the AUMF (despite being uninvolved with September 11th) represents a de facto return of the "divine right of kings," a repressive concept that holds the executive above the law and has seemingly been re-enshrined in America’s executive branch. The extrajudicial murder of American citizens flies in direct opposition to Article III, Section 3 of the United States Constitution. The extrajudicial murder of anyone, even suspected terrorists, defies the principles of the Magna Carta and the universal applicability of justice.
In an ideal world the United States would have responded to the terrorist attack of September 11, 2001 by producing evidence against every specific person the intelligence agency believed to be involved in the attack, providing it to some type of transparent (public) court, and then using special operators or intelligence agencies in cooperation with the international community to capture and try the accused. Considering the immense resources that have been devoted to the occupation of several dozen Middle Eastern countries over the last several decades, it is foolish to think this is unrealistic. It should be noted that ideal solutions are easier said than done, however, it should also be noted that the United States government does not have the moral right to invade every country on the planet and retroactively label their targets "terrorists" as a consequence of the AUMF. The number of domestic laws, international laws, and ethical principles this behavior comes in conflict with are countless. It is high time this exceptionally bad law, the Authorization for the Use of Military Force, is repealed, and the advice of Representative Barbara Lee is heeded.
Justin Pavoni is a former Air Force officer and F-15E evaluator pilot. Pavoni has deployed twice to Afghanistan, served as a Special Operations liaison, and has flown 550 combat hours.