In the aftermath of 9/11, the general American social sentiment could be characterized as a state of fear mixed with xenophobia. More specifically, the escalation of xenophobic tendencies were directed toward Islamic countries and Muslim American citizens. In 2001, the FBI released a report which detailed the xenophobia. The report found that 83.3% of all anti-Islamic hate crimes had occurred in the weeks following 9/11 and concluded with a “statistically significant increase in anti-Islamic hate crime” overall.1 With the increased emergence of xenophobic actions and a public demand for change, congress sprung to action.

Just three days after 9/11, Congress passed the Authorization for Use of Military Force of 2001 (AUMF) with only a single vote against the resolution in both the House of Representatives and the Senate. The new resolution authorized the President 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.”2 Determined, Congress gave the green light for President George W. Bush to attack the perpetrators of 9/11 with the full might of the U.S Armed Forces. However, the 2001 AUMF had long-lasting ramifications on American foreign policy that few could have foreseen.

The only person to vote against the bill in either chamber of Congress was Congresswoman Barbara Lee, a Democrat, who expressed significant reservations about the resolution. In her article titled “Why I opposed the resolution to authorize force,” Rep. Lee wrote that the 2001 AUMF was “a blank check to the president to attack anyone involved in the Sept. 11 events – anywhere, in any country, without regard to our nation’s long-term foreign policy economic and national security interests, and without time limit.”3 Lee even went as far as asserting that Congress had “failed its responsibility to understand the dimensions of its declaration”4 and has since proposed on multiple occasions to repeal the 2001 AUMF. At the time, Lee’s opinions were extremely unpopular, as she received harsh criticism from citizens, colleagues, and the media. However, as time went on, the unpopular reservations gained traction as the use of the 2001 AUMF broadened. It was perhaps inevitable that the 2001 AUMF would draw critique. With a short preamble and two brief paragraphs, the 2001 AUMF’s wording, or lack of wording, was exceptionally vague in regard to the exact extent of authority the resolution provided the President.

As of February 2018, the 2001 AUMF has been cited 37 times and its lifespan is well into its third presidency.5 Under President Barack Obama, the 2001 AUMF was cited the most out of any presidency and has been used to justify a myriad of controversial military conflicts. Following President Bush’s exit from office, the newly inaugurated President Obama inherited a largely unresolved and undefined 2001 AUMF. President Obama often called for the repeal of the 2001 AUMF, yet it is under President Obama’s administration that the scope of the 2001 AUMF started to evolve into its current state. While there were noteworthy accomplishments for the United States under the 2001 AUMF, such as the capture of al-Qaeda leader Osama Bin Laden, the Obama Administration’s use and development of the 2001 AUMF should be analyzed and critiqued to determine to what degree Lee’s reservations and attempts to repeal the bill were warranted. Looking back at the Obama Administration, it has become evident the 2001 AUMF created several glaring concerns. Throughout the 2008-2016 period, conflict after conflict, the shortfalls of the 2001 AUMF were shown to outweigh the marginal benefits. As discussed below, the Obama Administration facilitated the groundwork and nurtured the expansion with regard to the interpretation of the 2001 AUMF. From their interpretations, the Obama Administration’s use of the 2001 AUMF prolongated and proliferated U.S. involvement in the Middle East through an indefinite war on terror and unprecedented numbers of drone strikes.

An important facet of the 2001 AUMF is its impact on detention centers domestically and abroad. For years, prisoners of the War on Terror were silently detained at the U.S. Naval base located in Guantanamo Bay. A Bush-era Supreme Court decision in the case Boumediene v. Bush stated that detainees who resided in Guantanamo had the right of habeas corpus. The denial of their rights were in direct violation of the Constitution. Furthermore, the court ruled that trials by military commission were in violation of habeas corpus and, therefore, inherently unconstitutional.6 Boumediene v. Bush was a pivotal decision in limiting the scope and emplacing concrete guidelines on certain aspects of the 2001 AUMF. While the Obama Administration’s policies were somewhat consistent with Boumediene v. Bush ruling, they further expanded upon their ability to detain suspects under the 2001 AUMF. In a 2009 Memorandum, the Obama Administration outlined, solidified, and expanded its position regarding the power to detain suspected terrorists under the AUMF. Regarding who could be detained, the Obama Administration noted that, “in each case, given the nature of the irregular forces, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances.”7 Moreover, the Obama Administration declared, “Nor does the AUMF limit the ‘organization’ it covers to just al-Qaida or the Taliban.”8 The courts were in agreement with the new administration’s interpretations of the AUMF because no major litigation sided against the administration. This discretion was exactly what Representative Lee’s “blank check” referred to. By leaving the ability to detain on a case-by-case basis, the Executive Branch was allowed to use its own discretion, leading to a severe lack of judicial and congressional oversight. On the campaign trail, President Obama claimed that, under his administration, Guantanamo Bay would be closed, yet the 2009 Memorandum directly contradicted his promise. Furthermore, there were impactful monetary consequences because, by not closing Guantanamo, American taxpayers continued to foot the bill for the detention of an unspecified number of detainees for an unspecified amount of time.

Drone strikes were a quintessential part of the Obama Administration’s campaign against the War on Terror. In his first year of presidency, President Obama authorized more drone strikes than President Bush had in his entire presidency. It is estimated that under President Bush, 51 drone strikes occurred, while well over 500 drone strikes transpired under President Obama.9 While the dramatic escalation of drone strikes was more than alarming, the impact on innocent civilians was catastrophic. In 2011, referring to drone strikes, Deputy National Security Advisor John Brennan had claimed that, “for the past year, there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities that we’ve been able to develop.”10 However, this statement was later determined to be false, as a report released by the administration later claimed there were between 64 and 116 “non-militant” deaths.11 The statement was extremely problematic because it set a precedent of the Obama Administration misleading the American public and releasing contradictory evidence. However, even the 64 to 116 “non-militant” deaths were extremely low compared to estimates from other research institutions. The Bureau of Investigative Journalism reported that there had been 692 civilian casualties from drone strikes in Pakistan alone.12 The discrepancies between the Obama Administration’s tallies and those of outside research institutions could be due to the administration’s conservative counting. The Obama Administration had previously stated there were imperfections in counting casualties as different institutions may use different criteria for the assessment of civilian casualties. In regard to the criteria of civilians, the Administration noted that they defined militant as “any male deemed of fighting age found in any area of interest. Many such ‘militants’ might in fact be civilians.”13 Excluding these men who would have been counted as civilians by other organizations would artificially decrease the casualty count. This practice of conservative counting was applied to the administration’s total drone strike tally and was why a multitude of outside research groups, such as the Bureau of Investigative Journalism, estimated 563 drone strikes to the administration’s comparatively lower count of 473 strikes.14 However, the difference between 473 to 563 is negligible in comparison to the overall proliferation of drone strikes. A more apt comparison to analyze the rapid escalation of drone strikes was the difference between 563 and 51 drone strikes under President Obama and President Bush respectively. Under the Obama Administration, the range of drone strikes expanded from Afghanistan to Somalia, Libya, Iraq, and Syria. This expansion of drone strikes to “anywhere, in any country” represented the kind of latitude Lee stated she feared.15 Proponents of drone strikes have often asserted that these strikes were in the interests of the U.S. as they were able to kill terrorists from far away. However, there have been numerous cases of drone strikes not killing any designated enemies.16 The overall success of drone strikes has been quite controversial; but, the Obama Administration’s surge and the proceeding loss of life from drone strikes compared to the Bush Administration has been clear.

In one of its most extensive and aggressive interpretations, the Obama Administration construed the 2001 AUMF to include the newly formed Islamic State, or ISIS, as it is often referred to, as an associated force designated by the 2001 AUMF. The interpretation to include ISIS was one of the most controversial stances the Obama Administration had taken regarding the 2001 AUMF. The Obama Administration justified its categorization of ISIS as an “associated force” primarily due to ISIS being a faction within al-Qaeda. However, defining ISIS as an associated force was questionable as al-Qaeda had disavowed ISIS in July of 2014, well before the Obama Administration started to conduct the strikes. Moreover, ISIS had not even existed when the 2001 AUMF was enacted. In an online forum, al-Qaeda general command stated that they had “no connection with the group called the ISIS” and that “al-Qaeda is not responsible for ISIS’s actions.”17 Furthermore, Daniel Byman, a senior fellow at Brookings, noted: “The two organizations differ fundamentally on who they see as their main enemy.”18 Byman continued by stating that “Al Qaeda’s primary enemy is the United States, which it sees as the root cause of the Middle East’s problems” while “the primary target of the Islamic State has not been the United States, but rather apostate regimes in the Arab world-namely, the Assad regime in Syria.”19 As ISIS’s main concern was with apostate regimes in the Arab world, some political commentators and analysts called into question the validity of citing the 2001 AUMF as justification to attack ISIS. While there was a case for the interpretation of ISIS as an associated force, the case was a stretch at best. However, in 2015, this interpretation allowed President Obama to put boots on the ground in Syria to fight ISIS, further prolonging the War on Terror. Again, Lee’s reservations were proven right as analysts have predicted the war against ISIS to continue for many years.

President Obama had often called for bringing American troops home from areas of conflict, such as Afghanistan, and closing Guantanamo Bay as he promised in his campaign. However, by the end of his presidency none of these promises were upheld. Instead, during the Obama Administration, there was an expansion of the 2001 AUMF, as well as an era of unprecedented number of drone strikes. In retrospect, it is clear that all of Congresswoman Lee’s fears came to fruition. The expansion of the 2001 AUMF under the Obama Administration created a predicament for future U.S. foreign policy. As a more erratic Donald Trump Administration came into power, it seemed to have continued the use of the expansive interpretation of the 2001 AUMF further strengthening an already controversial U.S hegemony. Guantanamo Bay remains in operation to this day, and President Trump recently traded five high-ranking Taliban officials residing in Guantanamo for army private Bowe Bergdahl.20 Furthermore, in 2018, President Trump announced that he would be keeping the U.S. military in Syria indefinitely without congressional approval and cited the 2001 AUMF as justification.21 With the recent Trump Administration’s authorized killing of Iran’s top general, Qasem Soleimani, the Middle East remains an extraordinarily volatile and unpredictable region. While the future is unclear, the Trump Administration could further expand the 2001 AUMF, exacerbating many complex regional issues and entrenching the United States in wars indefinitely.

Bibliography

Notes

1.Bryan D Byers and James A Jones, “The Impact of the Terrorist Attacks of 9/11 on AntiIslamic Hate Crime,” Journal of Ethnicity in Criminal Justice, October 3, 2008, https://doi.org/10.1300/ J222v05n01_03

2. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

3. Barbara Lee, “Why I Opposed the Resolution to Authorize Force,” SFGATE, September 23, 2001, https://www.sfgate.com/opinion/article/Why-I-opposed-the-resolution-to-authorize-force-2876893.php)

4. Lee, “Why I Opposed the Resolution to Authorize Force.”

5. Matthew Weed, “Presidential References to the 2001 Authorization for Use of Military Force in Publicly Available Executive actions and Reports to Congress,” Presidential References to the 2001 Authorization for Use of Military Force in Publicly Available Executive Actions and Reports to Congress §, accessed April 23, 2020, https://fas.org/sgp/crs/natsec/pres-aumf.pdf)

6. Anthony Kennedy, “Boumediene v. Bush, 553 U.S. 723 (2008),” Justia Law (2020 Justia), accessed April 26, 2020, https://supreme.justia.com/ases/federal/us/553/723/#tab-opinion-1962621)

7. Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to

Detainees Held at Guantanamo Bay at 1, In re Guantanamo Bay Detainee Litigation (D.D.C.

Mar. 13, 2009) (Misc. No. 08-442)

8. Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to

Detainees Held at Guantanamo Bay at 1

9. Jessia Purkiss and Jack Serle, “Obama’s Covert Drone War in Numbers: Ten Times More Strikes than Bush,” The Bureau of Investigative Journalism (The Bureau of Investigative Journalism, October 29, 2019), https://www.the bureauinvestigates.com/stories/2017-01-17/obamas-covert-drone-war-in-numbers-ten-times-more-strikes-than-bush)

10. Obama Administration Counterterrorism Strategy (2020 National Cable Satellite Corporation, June 29, 2011), https://www.c-span.org/video/?300266-1/obama-administration-counterterrorism-strategy

11. Office of The Director of National Intelligence, “Summary of Information Regarding U.Ss Counterterrorism Strikes Outside Areas of Active hostilities” (Office of The Director of National Intelligence, July 1, 2016), https://www.dni.gov/files/documents/Newsroom/Press Releases/DNI Release on CT strikes outside Areas of Active Hostilities.pdf

12. Micah Zenko, “Do Not Believe the U.S. Government’s Official Numbers on Drone Strike Civilian Casualties,” Do Not Believe the U.S.s Government’s Official Numbers on Drone Strike Civilian Casualties, July 5, 2016, https://www.cfr.org/blog/obamas-final-drone-strike-data)

13. Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will,” New York Times, May 29, 2012, https://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-aqeda.html?pagewanted=1&_r=2&)

14. Purkiss and Serle, “Obama’s Covert Drone War in Numbers: Ten Times More Strikes than Bush,”

15. Lee, “Why I Opposed the Resolution to Authorize Force,”

16. Michael J Boyle, “The Costs and Consequences of Drone Warfare.” International Affairs 89 (2013): 1-29. Accessed April 26, 2020.

www.jstor.org/stable/23479331.

17. BBC, “Al-Qaeda Disavows ISIS Militants in Syria,” BBC, February 3, 2014, https://www.bbc.com/news/world-middle-east-26016318)

18. Daniel L. Byman and Jennifer R. Williams, “ISIS vs. Al Qaeda: Jihadism’s Global Civil War,” Brookings (2020 The Brookings Institution, July 28, 2016), https://www.brookings.edu/articles/isis-vs-al-aqeda-jihadisms-global-civil-war/)

19. Byman and Williams “ISIS vs. Al Qaeda: Jihadism’s Global Civil War,”

20. Kathy Gannon, “5 Freed from Gitmo in Exchange for Bergdahl Join Taliban’s Political Office in Qatar,” Military Times (2020 Sightline Media Group, November 1, 2018), https://www.militarytimes.com/news/your-military/2018/10/30/5-freed-from-gitmo-in-exchange-for-bergdahl-join-insurgents-in-qatar-taliban-says/)

21.Daniel Brown, “Trump Will Keep the US Military in Syria without New Congressional Authorization – and It Could Set a Dangerous Precedent,” Business Insider (February 23, 2018), https://www.businessinsider.com/trump-aumf-us-military-syria-without-new-authorization-2018-2)