Why Repealing the 1991 and 2002 Iraq War Authorizations Is Sound

LEGAL MEMORANDUM

No. 256 | JANUARY 6, 2020

EDWIN MEESE III CENTER FOR LEGAL & JUDICIAL STUDIES

This paper, in its entirety, can be found at http://report.heritage.org/lm256

The Heritage Foundation | 214 Massachusetts Avenue, NE | Washington, DC 20002 | (202) 546-4400 | heritage.org

Nothing written here is to be construed as necessarily reﬂecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill before Congress.

Why Repealing the 1991 and

2002 Iraq War Authorizations

Is Sound Policy

Charles D. Stimson

The 1991 and 2002 AUMF Against Iraq

Resolutions remain in force even though

their purpose has been accomplished.

KEY TAKEAWAYS

Repeal would not aect the 2001 AUMF,

the primary domestic statutory authority

for the war against al-Qaeda, the Taliban,

ISIS, or associated forces.

Debating and repealing those war

authorizations is a matter of congres-

sional hygiene and gets the Congress

back in the business of exercising its

Article I muscles.

he Constitution’s allocation of war powers

between the legislative and executive

branches is a classic example of the sepa-

ration of powers.

The Congress has the power to

declare war but cannot ﬁght the war on its own. The

President, as commander in chief of the Army and

Navy, has (and has uniformly claimed) the authority

to use military forces abroad in the absence of speciﬁc

prior congressional approval.

This authority derives

from his constitutional responsibility as commander

in chief and chief executive for foreign and military

aairs. Without money from Congress, however, the

President has no ability to ﬁght those conﬂicts, nor

does he have the authority to appropriate funds to pay

for those military conﬂicts on his own.

This tension between the legislative and executive

branches was purposeful, as the Founders anticipated

the grave signiﬁcance of the country’s going to war.

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The United States was born of war, and the Founders knew that in the likely

event the country would have to engage in future wars, the decision to take

the country to war should be allocated between two coequal branches

of government.

Like many other provisions in the Constitution, the Declare War Clause

is brief. It authorizes Congress “To declare War.”

The Constitution does

not dictate how Congress should declare war, just that it has the authority to

declare war. It authorizes Congress to “raise and support Armies,”

“provide

and maintain a Navy,”

and “make Rules for the Government and Regulation

of the land and naval Forces”

and provides “for calling forth the Militia to

execute the Laws of the Union, suppress Insurrections and repel Invasions.”

The President, on the other hand, “shall be Commander in Chief of the Army

and Navy of the United States.”

There is one, and only one, commander

in chief of the armed forces, and he enjoys capacious authority to defend

the nation.

According to advocates of presidential power, the Declare War Clause

does not address the power to begin actual hostilities.

It does not limit

presidential war power.

Rather, they argue that it gives Congress the

authority to alter legal relationships between subjects of warring nations

and trigger certain rights, privileges, and protections under the laws of

war.

Other scholars contend that the Declare War Clause limits presi-

dential war power by giving the legislature the sole authority to begin an

oensive war.

One interpretation of the clause is that it requires Con-

gress to issue a formal declaration of war before the United States may

begin hostilities.

Whatever one’s viewpoint on the matter may be, the Constitution is silent

with respect to how wars are terminated and therefore leaves unanswered

a host of important questions.

Who has the authority to end an authorized war, be it a formal wartime

declaration or a speciﬁc authorization for the use of military force?

If Congress repeals its own war authorization, does that act alone end

the war, or must the President agree?

What happens if Congress repeals its own war authorization and

the President vetoes the legislation and the Congress cannot over-

ride his veto?

What value is there, then, in Congress’s publicly debating war powers?

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What message does such a debate send to the American public?

Does the absence of such a debate aect the American people and our

warﬁghters and inﬂuence our allies or enemies?

Does Congress have an obligation, if not legally at least morally, to

debate war powers periodically when the country is at war?

Against this backdrop, Senators Tim Kaine (D–VA) and Todd Young

(R–IN) have introduced a joint resolution to repeal two congressionally

authorized war authorizations against the country of Iraq:

the 1991 Autho-

rization for Use of Military Force (AUMF) Against Iraq Resolution

and the

Authorization for Use of Military Force Against Iraq Resolution of 2002.

They claim that the Iraq AUMFs make no sense, serve no operational pur-

pose, run the risk of future abuse by a President, and help to keep the nation

on a permanent war footing.

They also claim that Congress has a vital role

not only in declaring a war, but also in ending one.

The preamble to their resolution claims, among other things, that the

repeal of both war authorizations would not aect ongoing military oper-

ations, which are conducted and authorized by the 2001 Authorization

for Use of Military Force

passed in the wake of the September 11, 2001,

terrorist attacks, and would have no impact on the 2001 AUMF itself.

There are consequences to congressional inaction, whether it is failure

to pass appropriations on time, delaying decisions on major infrastruc-

ture programs, failure to fund health insurance programs, or failure to

reauthorize vital national security or defense programs on time. The con-

sequences are real and have devastating eects. Congressional failure to

authorize force against ISIS, for example, or refusal to repeal outdated

war authorizations has consequences. It aects the relationship between

the legislative branch and the executive branch, with the former ceding

power to the latter. Congressional acquiescence seemingly relieves the

legislative branch of the responsibility to decide whether to authorize war

or repeal outdated authorizations at a time when the American people,

the military, our allies, and enemies need to hear from Congress on the

issue of war and peace.

There is great value in our democratic republic for Congress to debate

war powers, and just as there is value in debating whether to authorize war,

there is the concomitant value in debating the repeal of war authoriza-

tions passed years or decades ago, especially when the object and purpose

of those war authorizations have been accomplished. Debating and then

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repealing those vestigial war authorizations is a matter of congressional

hygiene and gets the Congress back in the business of exercising its Arti-

cle I muscles.

The 1991 Iraq Authorization for Use of Military Force

The 1991 Iraq AUMF remains in place to this day, despite the fact that the

primary purpose of that war authorization was accomplished decades ago. It

is a vestigial war authorization. Senator Kaine calls it a “zombie authoriza-

tion.”

The use of the word “zombie” is colorful but nonetheless apt, as the

concern is that this war authorization could come back to life years or decades

after its primary purpose has been met and used by a future Administration

for a purpose entirely disconnected and unrelated to the original purpose of

the statute.

Moreover, although the 1991 and 2002 Iraq AUMFs are stand-

alone war authorizations, they are connected to each other in a way that the

other 40-plus AUMFs and congressional declarations of war are not.

The 1991 Iraq AUMF, which remains in eect, references several United

Nations Security Council Resolutions (UNSCRs) in the text of the statute

and states that the “President is authorized…to use United States Armed

Forces pursuant to United Nations Security Council Resolution 678 in order

to achieve implementation” of 11 other U.N. Security Council Resolutions.

Understanding those UNSCRs is essential if one is to understand both why

the purpose of the 1991 Iraq AUMF has been accomplished and its close

relationship to the 2002 AUMF.

In late May of 1990, Iraqi President Saddam Hussein accused Kuwait and

the United Arab Emirates of overproducing oil, threatening the economic

viability of Iraqi oil exports. In July, Hussein accused Kuwait of stealing

Iraq’s oil, and on August 2, 1990, he ordered an invasion of Kuwait. Approxi-

mately 140,000 Iraqi soldiers, supported by 850 tanks, entered and occupied

Kuwait. Iraqi aircraft bombed Kuwait City and air bases in the country.

The invasion was condemned by Saudi Arabia and Egypt, as well as by the

United States and other Western nations.

The day of the invasion, the United Nations Security Council passed

UNSCR 660,

which determined that the invasion of Kuwait was a

“breach of international peace and security,” condemned the invasion, and

demanded an immediate withdrawal of all Iraqi forces. UNSCR 660 was the

ﬁrst of several Security Council resolutions that condemned Iraq’s unlawful

invasion and demanded a complete withdrawal from Kuwait.

In response to the invasion, President George H.W. Bush ordered the U.S.

Navy to deploy ships to the Persian Gulf on August 3, 1990. The next day, on

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August 4, Saddam Hussein appointed Alaa Hussein Ali as Prime Minister of

the Provisional Government of Free Kuwait, and Iraq declared that Kuwait

was the 19th Governorate of Iraq.

On August 6, 1990, the Security Council passed UNSCR 661, which

rearmed UNSCR 660 and expressed “deep concern” that it had not

been implemented. The resolution expressed the council’s determination

to bring the invasion and occupation of Kuwait by Iraq “to an end and to

restore the sovereignty, independence and territorial integrity of Kuwait.”

The same day, United States Secretary of Defense Richard B. Cheney visited

the King of Saudi Arabia to discuss sending U.S. troops to the region.

On August 7, 1990, the United States launched Operation Desert Shield

and deployed approximately 15,000 troops, Navy ships, and military air-

craft to the Kingdom of Saudi Arabia. The United States Air Force sent 48

F-15 ﬁghters of the 1st Fighter Wing from Langley Air Force Base to Saudi

Arabia, where they immediately began to patrol the Saudi–Kuwait–Iraq

border areas.

On August 9, 1990, the Security Council passed UNSCR 662, which

expressed alarm at Iraq’s declaration of a “comprehensive and eternal

merger” with Kuwait and demanded that Iraq immediately withdraw, end

its occupation, and “restore the authority of the legitimate Government of

Kuwait.”

It also determined that the “annexation of Kuwait by Iraq under

any form and whatever pretext has no legal validity, and is considered null

and void;” urged other states, organizations, and agencies not to recognize

that annexation; and demanded that Iraq rescind its actions.

Also in

August, the League of Arab States met in Cairo to condemn the invasion

and called on Iraq to withdraw its troops.

On August 18, 1990, the Security Council, upping the diplomatic pres-

sure once more, passed UNSCR 664, which demanded that Iraq permit

the immediate departure from Kuwait and Iraq of third-country nation-

als; grant immediate and continuing access of consular ocials; demanded

that Iraq take “no action to jeopardize the safety, security or health of such

nationals;” and rearmed the previous Security Council resolutions.

Despite U.N. condemnation, Arab League pressure, and the growing pres-

ence of U.S. and other military forces in the region, however, Iraq continued

to occupy Kuwait and conduct oensive military operations. On August 20,

Iraq detained 3,000 Americans and 83 British citizens in Iraq and Kuwait.

President Bush condemned the act and said the Americans and British being

detained “are, in fact, hostages.”

What followed was a succession of Security Council resolutions, each of

which is referenced in the 1991 Iraq AUMF and summarized below:

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1. UNSCR 665, calling on those member states cooperating with Kuwait

that are deploying maritime forces to halt all inward and outward

maritime shipping in order to inspect and verify their cargoes.

2. UNSCR 666, noting (among other provisions) that it may be necessary

to provide food to civilians in Iraq and Kuwait in order to “relieve

human suering” and that Iraq remains fully responsible under

international humanitarian law, including the 4th Geneva Convention,

to protect civilians.

3. UNSCR 667, which, after noting that Iraq is a party to the Vienna

Convention on Diplomatic Relations of April 18, 1961, and the Vienna

Convention on Consular Relations of April 24, 1963, condemned Iraq

for ordering the closure of diplomatic and consular missions in Kuwait,

as well as its decision to withdraw the privileges and immunities of

those missions; condemned the acts of violence against diplomatic

missions and their personnel in Kuwait; and demanded the immediate

release of nationals and foreign nationals.

4. UNSCR 669, which rearmed UNSCR 661 and acknowledged the

fact that “an increasing number of requests for assistance have

been received under the provisions of Article 50 of the [United

Nations] Charter.”

5. UNSCR 670, which rearmed UNSCRs 660, 661, 662, 665, 666, and

667; condemned continued occupation of Kuwait and Iraqi forces’

treatment of Kuwaiti nationals; conﬁrmed that UNSCR 661 applied to

all means of transport including aircraft; decided that all states shall

deny permission to any aircraft destined to land in Iraq or Kuwait to

overﬂy their territory except under certain conditions; and increased

sanctions against Iraq.

6. UNSCR 674, which rearmed UNSCRs 660, 661, 662, 664, 665, 666,

667, and 670; stressed the urgent need for immediate and uncondi-

tional withdrawal of all Iraqi forces from Kuwait and restoration of

Kuwait’s sovereignty, independence, and territorial integrity; con-

demned Iraqi authorities for taking third-country nationals hostage

and for mistreating and oppressing Kuwaiti and third-country nation-

als; and other measures.

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7. UNSCR 677, which expressed grave concern at the ongoing attempts

by Iraq to alter the “demographic composition of Kuwait and to

destroy the civil records maintained by the legitimate Government

of Kuwait.”

By late fall of 1990, it was becoming increasingly clear that Saddam Hus-

sein had no intention of complying with the United Nations resolutions

and was convinced that the military buildup in the region was most likely

a hollow threat by the West and its allies in the Gulf Region.

By October 30, 1990, President Bush had made the decision to push Iraq

out of Kuwait by force if necessary.

The President increased the U.S. force

presence in the region and petitioned the United Nations for authorization

to use force.

By the end of the year, approximately 350,000 U.S. forces had

been deployed to the area.

On November 29, 1990, the Security Council adopted UNSCR 678, which

gave Iraq until January 15, 1991, to implement UNSCR 660 fully.

In the

absence of compliance by Iraq, paragraph 2 of UNSCR 678 authorized

member states “to use all necessary means to uphold and implement res-

olution 660 (1990) and all subsequent relevant resolutions and to restore

international peace and security in the area.”

On January 8, 1991, in a letter to congressional leaders, President Bush

requested a congressional resolution supporting the use of all necessary

means to implement UNSCR 678. The President stated that he was “deter-

mined to do whatever is necessary to protect America’s security” and that

he could “think of no better way than for Congress to express its support

of the President at this critical time.”

On January 14, 1991, both houses of Congress passed the Authorization

for Use of Military Force Against Iraq Resolution, or Public Law (P.L.) 102-

Subsection 2(a) authorized the President “to use United States Armed

Forces pursuant to United Nations Security Council Resolution 678 (1990)

in order to achieve implementation of Security Council Resolutions 660,

661, 662, 664, 665, 666, 667, 669, 670, 674, and 677.” Subsection (b) required

the President, before exercising the authority granted in Subsection (a), to

use diplomatic and “other peaceful means to obtain compliance by Iraq”

with the Security Council resolutions and make a determination that

those “eorts have not been and would not be successful in obtaining such

compliance.”

Upon signing P.L. 102-1, President Bush issued a signing statement

wherein he stated that “my request for congressional support did not, and

my signing [P.L. 102-1] does not, constitute any change in the longstanding

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positions of the executive branch on…the President’s constitutional author-

ity to use the Armed Forces to defend vital U.S. interests.”

Iraq refused to withdraw from Kuwait before the January 15, 1991, dead-

line, and on January 16, 1991, President Bush made the determination

required by P.L. 102-1 that diplomatic means had not compelled and would

not compel Iraq to withdraw from Kuwait. On January 18, he reported

to Congress “consistent with the War Powers Resolution”

that he had

directed U.S. forces to commence combat operations on January 16, 1991.

Note that President Bush did not ask for “authorization” from Congress

to use military force, but rather requested congressional “support” for his

undertaking in the Persian Gulf.

He believed that he had all the legal

authority he needed to go to war, based not only on his authority under

Article II of the Constitution, but also on applicable Security Council

Resolutions. Recall that UNSCR 678 authorized member states “to use all

necessary means to uphold and implement resolution 660 (1990) and all

subsequent relevant resolutions and to restore international peace and

security in the area.”

When asked at a press conference on January 9, 1991, whether he thought

he needed P.L. 102-1 and whether, if it didn’t pass, he would feel bound by

Congress’s decision, President Bush stated, “I don’t think I need it…. I feel

that I have the authority to fully implement the United Nations Resolutions”

as well as “the constitutional authority—many attorneys having so advised

me.”

President Bush’s statement was consistent both with his earlier sign-

ing statement and with the position taken by other Presidents regarding

their constitutional authority under Article II of the Constitution to protect

and defend the United States and use the military to do so, even absent

express congressional authorization.

Allied air forces commenced an attack on military targets in Iraq and

Kuwait. Ground forces were introduced on February 23, 1991, and Iraq

was expelled from Kuwait four days later.

Exactly 100 hours after ground

operations began, President Bush suspended oensive combat operations

because the Iraqi Army was defeated and surrendering in droves.

The (Temporary) Cease-Fire. On April 3, 1991, the Security Council

adopted UNSCR 687, which established conditions for a formal cease-ﬁre

suspending hostilities in the Persian Gulf.

The resolution “rearmed the

need to be assured of Iraq’s peaceful intentions” given Iraq’s invasion of

Kuwait, its use of chemical weapons and ballistic missiles in unprovoked

attacks, and reports that it had attempted to acquire materials to build

nuclear weapons.

Among the conditions for a formal cease-ﬁre, the res-

olution speciﬁed that “Iraq shall unconditionally accept the destruction,

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removal, or rendering harmless, under international supervision,” of “[a]

ll chemical and biological weapons and all stocks of agents and all related

subsystems and components and all research, development, support and

manufacturing facilities related thereto” and “[a]ll ballistic missiles with a

range greater than 150 kilometres, and related major parts and repair and

production facilities.”

On April 6, 1991, Iraqi ocials accepted the terms set forth in UNSCR

687, and a formal cease-ﬁre went into eect between Iraq, Kuwait, and the

U.N. member countries that had cooperated with Kuwait under UNSCR

678, including the United States.

Yoram Dinstein, a preeminent law of war

scholar, stated that the “labelling of [Security Council] Resolution 687 as a

permanent cease-ﬁre is a contradiction in terms; a cease-ﬁre, by deﬁnition,

is a transition-period arrangement.”

It is important to note that Security Council Resolution 687 suspended

but did not terminate the authority to use force under UNSCR 678.

The

cease-ﬁre established by UNSCR 687 is similar to an armistice: Unlike a

peace treaty, it does not terminate the state of war, but merely “suspends

military operations by mutual agreement between the belligerent parties.”

A cease-ﬁre allows a party to a conﬂict to resume hostilities under certain

conditions.

It could be argued that Iraq’s expulsion from Kuwait in February 1991

by the United States and the allied nations fully implemented the UNSCRs

listed in P.L. 102-1 and that the authorization in Subsection 2(a) for the use

of U.S. armed forces has therefore expired,

but Iraq accepted the terms of

the cease-ﬁre agreement in name only, as it deﬁed, eluded, and skirted the

terms of agreement throughout the 1990s. As a result, the Administrations

of Presidents William J. Clinton and George W. Bush maintained that P.L.

102-1 remained in eect.

The 2002 Iraq AUMF

In January 2002, four months after the September 11, 2001, attacks against

the United States, President George W. Bush delivered the annual State of the

Union Address.

During his address, he outlined the national security threats

to America and, in particular, singled out Iraq, Iran, and North Korea, calling

them an “axis of evil.”

They seek “weapons of mass destruction” and “pose

a grave and growing danger” to the United States and our allies.

By the summer of 2002, less than a year after the September 11 terrorist

attacks in the United States by al-Qaeda, the Bush Administration started

to talk about the signiﬁcant threat to U.S. interests posed by Iraq.

As the

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war against al-Qaeda, the Taliban, and associated forces was being waged,

President Bush met with congressional leadership on September 4, 2002,

and stated that he would seek congressional support in the near future for

action he deemed necessary to deal with the threat that Saddam Hussein’s

regime posed to the United States.

The President told congressional lead-

ers that “Saddam Hussein is a serious threat. He is a signiﬁcant problem.

And it’s something that this country must deal with.”

On September 12, 2002, in a major speech to the U.N. General Assembly,

President Bush outlined his concerns about Iraq’s actions since the end

of the Gulf War in 1991.

He reminded the international audience about

Iraq’s numerous violations of U.N. Security Council resolutions since 1991,

including those related to disarmament.

A week later, the White House proposed legislation to authorize the use

of military force against Iraq. It was introduced as Senate Joint Resolution

45 on September 26 and debated by the Senate from October 3 to October

11. The Senate eventually passed House Joint Resolution 114, which was a

slightly amended version of the Senate resolution, on October 11. President

Bush signed the Authorization for Use of Military Force Against Iraq Resolu-

tion of 2002, also known as P.L. 107-243, into law on October 16, 2002.

The

2002 Iraq AUMF did not include any geographical or temporal limitations.

On November 8, 2002, the Security Council passed UNSCR 1441, which

gave Iraq one “ﬁnal opportunity to comply with its disarmament obliga-

tions.”

Failure to comply would result in “serious consequences,” which

everyone understood to mean the use of military force.

The primary focus of the 2002 Iraq AUMF was the threat posed by

Saddam Hussein and Iraq. Section (3) authorized the President to “use the

Armed Forces of the United States as he determines to be necessary and

appropriate to: (1) defend the national security of the United States against

the continuing threat posed by Iraq; and (2) enforce all relevant United

Nations Security Council Resolutions regarding Iraq.”

Note, however, that unlike the 1991 Iraq AUMF, which authorized the

President to enforce previously adopted and delineated Security Council

resolutions (mentioned by number in the statute), the 2002 Iraq AUMF

arguably gave the President broader authority because it included “all

relevant” resolutions.

All relevant resolutions included the UNSCRs men-

tioned in the 1991 Iraq AUMF, thus tying the two Iraq AUMFs to each other.

It is also worth noting that the 2002 Iraq AUMF includes several para-

graphs of ﬁndings before the operative text of the statute, each paragraph

beginning with the word “whereas,”

and that two of these paragraphs are

relevant to the Trump Administration’s continued reliance on the statute.

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The Bush and Obama Administrations relied on the 2002 Iraq AUMF

to maintain the presence of U.S. armed forces and to conduct military

operations in Iraq. The U.N. Security Council terminated the mandate of

the U.S.-led multinational force in Iraq (MNF-I) as of December 31, 2008.

President Barack Obama ordered all U.S. forces to withdraw at the end of

December 2011, which they did.

President Obama’s move to withdraw all troops from Iraq at the end of 2011

was controversial.

Many claim that by not leaving a standby or residual military

presence, President Obama contributed to, and in fact created, the circumstances

that led to the rise of the Islamic State (ISIS).

Regardless of one’s views on the

issue, as a legal matter, the 2002 Iraq AUMF remained on the books after the

pullout and the rise of ISIS, through the degradation of ISIS and al-Qaeda, and

remains current law.

Some question its continued eectiveness.

Suce it to say that when ISIS became a dominant force in Iraq in the

years from 2012–2014, the Obama Administration took military action

against ISIS and relied on the 2001 AUMF and the 2002 Iraq AUMF as

domestic statutory authority. In its ﬁrst (and only) National Defense

Authorization Act (NDAA) Section 1264 war powers report,

the Obama

Administration stated that “as a matter of domestic law, the 2001 AUMF and

the 2002 [Iraq] AUMF authorize the U.S. use of force against ISIL in Iraq.”

Similarly, the Obama Administration wrote that, with respect to Syria, “[t]

he 2001 AUMF and, in certain circumstances, the 2002 AUMF authorize

the use of force in Syria against al-Qa’ida in Syria and ISIL.”

Oddly enough, even while it was engaged in military action against ISIS,

including bombing ISIS ﬁghters, the Obama Administration was signaling

that it wanted to repeal the 2002 AUMF. On September 14, 2014, during

the height of oensive military operations against ISIS, a senior Obama

Administration ocial emailed a New York Times reporter when speaking

about the legal authorities for military airstrikes against ISIS:

The President may rely on the 2001 AUMF as statutory authority for the mili-

tary airstrike operation he is directing against ISIL. As we have explained, the

2002 Iraq AUMF would serve as an alternative statutory authority basis on

which the President may rely for military action in Iraq. Even so, our position

on the 2002 Iraq AUMF hasn’t changed and we’d like to see it repealed.

Two months before this email to The New York Times, Susan Rice, Assis-

tant to the President for National Security Aairs,

sent a letter to Speaker

of the House John Boehner urging “the repeal of the outdated 2002 Autho-

rization for Use of Military Force in Iraq.”

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The Trump Administration has also submitted one NDAA Section 1264

war powers report.

In the section entitled “The Domestic Law Bases

for the Ongoing Use of U.S. Military Force,” the Administration acknowl-

edges that the “primary focus of the 2002 AUMF” was “the threat posed

by Saddam Hussein’s regime in Iraq.”

However, the report states that the

“express goals” have always been understood to authorize the use of force for

the related dual purposes of helping to establish a stable, democratic Iraq

and addressing terrorist threats emanating from Iraq.

Finally, it adds that

“the 2002 AUMF reinforces the authority for military operations against

ISIS in Iraq and, to the extent necessary to achieve the purposes described

above, in Syria and elsewhere.”

It is at best debatable whether the 2002 Iraq AUMF’s “express goals”

have “always” been understood to include “helping establish a stable,

democratic Iraq.” Nowhere in the statute does it say that the goal is to

“establish a stable, democratic Iraq.” The closest the statute comes to that

is where, in the ﬁndings preamble to the operative section of the statute, it

references the Iraq Liberation Act of 1998, P.L. 105-338, which expressed

the sense of Congress that it “should be the policy” of the United States

to remove from power the “current Iraqi regime” and, according to the

2002 Iraq AUMF, “promote the emergence of a democratic government

to replace the regime.”

Relying on a 1998 law that merely expresses the sense of Congress to

promote the emergence of a democratic government in Iraq is odd indeed. A

“sense of” provision is not legally binding because it is not presented to the

President for his signature.

Even if a “sense of” provision is incorporated

into a bill—such as the 2002 Iraq AUMF—that becomes law, such a provision

merely expresses the opinion of Congress or the relevant chamber.

It has

no formal eect on public policy and no force of law.

The fact that the ﬁndings include a sense of Congress to promote the

emergence of a democratic Iraq back in 1998 is historically interesting, but

it has no legal eect. The Trump Administration is at best overreaching

when it relies on that ﬁnding to assert, as it does in its NDAA Section 1264

war powers report, that the dual purpose of the 2002 Iraq AUMF includes

“establish[ing] a stable, democratic Iraq.”

The second part of the 2002 Iraq AUMF’s dual purpose as cited in the

Trump Administration’s NDAA Section 1264 war powers report is to address

terrorist threats emanating from Iraq. The ﬁndings do include several para-

graphs that, arguably, remain just as factually true in the fall of 2019 as they

were in 2002 when the statute was passed. Today, however, Iraq is a partner

and hosts a small number of U.S. military and other government personnel

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to ward o the terrorist threat. Fortunately, Iraq is no longer a threat to

the United States as it was under the Saddam Hussein regime or when ISIS

controlled large areas of Iraq.

Finally, it is worth highlighting the language used by the Obama and

Trump Administrations in their war powers reports when referencing the

2002 Iraq AUMF. The primary war authorization relied upon by the Bush,

Obama, and Trump Administrations to prosecute the war against al-Qaeda,

the Taliban, ISIS, and associated forces has been and continues to be the

2001 AUMF. Each Administration has relied and continues to rely on that

war authorization as the bedrock domestic legal authority for wartime

operations.

It has no expiration date, no geographical limitation, and no

sunset clause and applies to a discrete but ever-evolving group of terrorists

with connections to the 9/11 attacks. Most important, it applies in Iraq.

Furthermore, repealing the 1991 and 2002 Iraq AUMFs would have no

operational, legal, or prudential impact on the ecacy of the 2001 AUMF.

The 2001 AUMF has been used by successive Administrations to go after

evolving terrorist threats, including terrorist groups that did not even exist

in 2001. Unless Congress decides to exercise the political courage to amend

it to include ISIS and other associated forces, the 2001 AUMF will remain

the bedrock domestic statutory authorization to ﬁght terrorism.

In truth, however, the lack of political will to amend, repeal, or

replace the 2001 AUMF has nothing to do with repealing two unrelated,

outdated AUMFs.

The Obama Administration called the 2002 Iraq AUMF an “alternative

statutory authority,” meaning, no doubt, that it was supplementary to or

duplicative of the authority already existing in the 2001 AUMF. Similarly,

the Trump Administration said the 2002 Iraq AUMF “reinforces” the

authorities needed for military operations, suggesting without saying that

the 2001 AUMF provides all the authority necessary for military operations

against ISIS, al-Qaeda, or associated forces in Iraq.

There has been an open and vibrant debate about whether the 2001

AUMF covers ISIS, a terrorist organization that did not even exist when

the 2001 statute was passed and has disavowed and formally broken away

from al-Qaeda, the group that is covered by the 2001 AUMF,

Yet both the

Obama and Trump Administrations claim that the 2001 AUMF covers

ISIS and associated forces.

Eorts to amend that statute have failed, and

that failure on the part of the Congress and the Obama Administration has

infected the debate. As a result, Congress has shied away from the much-

needed debate about whether to amend the 2001 AUMF to cover ISIS and

associated forces.

100

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Nevertheless, that failure to debate the all-encompassing 2001 AUMF

should not blind Congress to the fact that the 2002 Iraq AUMF is no

longer necessary and merely acts as a belt-and-suspender approach to war

authorizations.

The Price of Inaction

Before addressing the issue of why it would be sound policy to repeal the

two Iraq war authorizations, it is important to look back on the Framers’

understanding of how wars were to end. As we have seen, the constitutional

separation of power and allocation of war power is between the Congress

and the President. This power is likewise a shared power of Congress and

the President, but in a somewhat dierent sense than the allocation of

warmaking powers discussed above.

101

Debates at the Constitutional Convention reveal an understanding that Con-

gress could not eectively end war simply by passing a resolution declaring a

cessation of hostilities.

102

The Framers believed that only a peace treaty signed by

the President and ratiﬁed by two-thirds of the Senate could formally terminate

a war and that the President’s role as protector and representative of the nation

prevented Congress from ending a war without his consent.

103

It is telling, as

some scholars argue, that the Framers did not give Congress the sole power

to terminate a war, just as they did not give it the sole power to begin one.

104

The Framers no doubt realized that politics, as an expression of the will

of the people, would heavily inﬂuence decisions about whether to go to

war and whether to terminate or end a war. Both decisions have potentially

grave consequences that are borne by the very people who elected repre

sentatives to Congress in the ﬁrst place.

Congress possesses the appropriations power and can employ such

power to defund an authorized war.

105

For Congress to exercise that power

and cut o funds for an authorized war would eectively terminate the war

as an operational matter because the President would not have the money

to prosecute it, but it arguably would not terminate the war as a legal matter,

at least according to some scholars.

106

In practice, throughout our nation’s history, all declared wars have

ended in treaties,

107

and some war authorizations

108

have ended in a vari-

ety of ways.

109

For example, while President Dwight David Eisenhower’s

Formosa AUMF was repealed by Congress in 1974,

110

his 1957 Middle East

Force Resolution

111

has never been repealed.

For obvious reasons, the 1991 and 2002 Iraq AUMFs are not likely candi-

dates for treaties. Unlike the ﬁve previous declarations of war, which were

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against countries that we fought to victory in total war, the Iraq AUMFs

were fought primarily against a country headed by a ruthless dictator who

by his actions threatened the United States, its allies, and the world com-

munity with weapons of mass destruction. Saddam Hussein was captured

in December 2013, was tried in an Iraqi court for crimes against humanity,

and was hanged in December 2006. The current country of Iraq is an ally,

and the United States and coalition partners work with the Iraqi leadership

at their request to help safeguard their country from terrorist elements.

It therefore would not be practical to sign a peace treaty with Iraq. In

fact, the object and purposes of the 1991 Iraq AUMF have been met, and

the 2002 Iraq AUMF was directed, as a practical matter, at Saddam Hus-

sein. A peace treaty is not in the ong, nor is one necessary. That leaves

two options on the table: keep the Iraq AUMFs in place and risk the danger

that some future Administration will try to rely on one or both of them to

go back into Iraq or elsewhere, or repeal them and convince the President

to sign the repeal bill.

Senators Kaine and Todd Young have been consistent and vocal pro-

ponents of repealing the two Iraq AUMFs. In their joint repeal resolution,

there are several congressional ﬁndings of note. They point out that the

2002 Iraq AUMF only reinforces the 2001 AUMF; that repealing the Iraq

AUMFs would “not eect ongoing United States Military operations;” that

since 2014, the United States military forces have been operating in Iraq at

the request of the government of Iraq for the sole purpose of supporting its

eorts to combat ISIS; and that neither the 1991 nor the 2002 Iraq AUMF

is being used as the sole legal basis for any detention of enemy combatants

held by the United States.

112

Those proposed congressional ﬁndings are hard to dispute.

In November 2016, Senator Kaine took to the Senate ﬂoor to outline why

he thought the Senate should debate the applicability of the 2001 AUMF

to ISIS. He made a number of points, each of which has merit, and set the

stage for his later eorts to repeal the Iraq AUMFs.

First, he noted that in Congress, there is a “tacit agreement to avoid

debating this one in the one place that it ought to be debated: in the halls of

Congress.”

113

He noted that 80 percent of the Members of Congress were not

in Congress when the 2001 AUMF was debated and said that “80% of us that

were not here in 2001 have never had a meaningful debate or vote upon this

war against ISIL.”

114

It is time, according to Senator Kaine, for “Congress

to reassert its rightful place in this most important set of decisions. Of all

the powers that we would have as a Congress, I can’t think of any that are

more important than the power to declare war.”

115

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The same logic can and should be applied to the two Iraq AUMFs. Vir-

tually no current Members of Congress were in oce when the 1991 Iraq

AUMF was voted on, and only a handful were in oce for the 2002 Iraq

AUMF. Congress has no stake in either war authorization.

There are consequences to congressional inaction on the 2001 AUMF,

as Ben Wittes, cofounder of the inﬂuential Lawfareblog.com, has written.

116

Congressional failure to engage constitutes a “meaningful congressional

acquiescence in the President’s bold and relatively attenuated claim of

authority to confront ISIS under the 2001 AUMF.”

117

Again, the same logic

applies to the Iraq AUMFs. Senator Young asserts that repealing the two

Iraq AUMFs would act to “prevent the future misuse of the expired Gulf

and Iraq War authorizations and strengthen Congressional oversight over

war powers.”

118

Conclusion

There is little doubt that taking up the Kaine–Young resolution and hold-

ing a public debate, perhaps with expert witnesses, would educate Members

of Congress and the public about war powers in general and whether there is

a need for these two outdated, vestigial war authorizations. Congress has not

had the political will or institutional stomach to be frank with the American

people about the outdated and stretched-to-the-legal-brink 2001 AUMF.

The Obama Administration, to its credit, sent out senior Administra-

tion ocials to give a series of public speeches explaining the legal basis

for a whole host of national security–related topics, from drone strikes to

detention policy to war powers. The Trump Administration has failed to

follow suit, but speeches or no speeches, each Administration relied and

continues to rely on an almost two-decade-old 2001 war authorization

against a terrorist group that did not exist on September 11, 2001, has dis-

avowed its connection to the group that was responsible for 9/11, and has at

best a tenuous connection to the small number of terrorists covered under

the 2001 AUMF.

Debating the repeal of the two Iraq war authorizations would allow

Congress to re-engage its constitutional muscles on a topic about which

Members should be ﬂexing their muscles on a regular basis and that is

not kryptonite to their political futures.

119

A robust, fulsome debate would

engage senior U.S. military leadership, senior U.S. diplomats, and law-of-

war scholars and historians. It would require the Administration either

to defend the use of the Iraq AUMFs or to agree that their usefulness

has expired.

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Finally, such a debate would be an act of congressional hygiene. Clearing

(or cleaning) out the legislative closet of war authorizations that have long

since been used up would be a ﬁrst step in restoring the balance of power

between Congress and the President with respect to the warmaking power.

120

Charles D. Stimson is a Senior Legal Fellow and Manager of the National Security Law

Program in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for

Constitutional Government, at The Heritage Foundation.

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Endnotes

1. Michael Stokes Paulsen, The War Power, 33 Harv.J.L & Pub.PoL’y 113 (2010).

2. See Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, Dec. 2016

at 7. See also Caroline D. Krass, Principal Deputy Assistant Attorney General, O.L.C. Opinion of April 1, 2011, Authority to Use Military Force in Libya, at

6; See also Authority to Use United States Military Forces in Somalia, 16 U.S. Op. O.L.C. 6, 9 (1992), and Authority of the President Under Domestic and

International Law to Use Military Force Against Iraq, 26 U.S. Op. O.L.C. 143, 6 (2002).

3. See u.S. ConSt. art. I, § 8, cl. 11.

4. See u.S. ConSt. art. I, § 8, cl. 12.

5. See u.S. ConSt. art. I, § 8, cl. 13.

6. See u.S. ConSt. art. I, § 8, cl. 14.

7. See u.S. ConSt. art. I, § 8, cl. 15.

8. See u.S. ConSt. art. II, § 2, cl. 1.

9. See John Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CaLif.L.rev. 167 (1996).

10. See MattHew SPaLding & david forte, tHe Heritage guide to tHe ConStitution 165 (2d Ed. 2014).

11. See robert f. turner, rePeaLing tHe war PowerS reSoLution: reStoring tHe ruLe of Law in u.S. foreign PoLiCy 80–96 (1991) (arguing that the President has

the authority to begin armed conﬂict in the absence of congressional authorization). See also Eugene V. Rostow, Great Cases Make Bad Law: The War

Powers Act, 50 tex.L.rev. 833 (1972).

12. Id.

13. Id. See also Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by Declare War, 93 CorneLL L. rev. 45 (2007).

14. Id.

15. A topic beyond the scope of this paper is the dierence between a formal congressional declaration of war and a congressional authorization for

the use of military force. That topic, not surprisingly, has been the subject of signiﬁcant debate among scholars. See, e.g., Curtis A. Bradley & Jack L.

Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv.L.Rev. 2047, 2057–2066 (2005). See also Harold Hongui Koh, The Coase

Theorem and the War Power: A Response, 41 duke L.J. 122, 126 (1991).

16. See Senator Tim Kaine, Kaine & Young Introduce Bill to Repeal 1991 & 2002 AUMFs, Formalizing End of Gulf & Iraq Wars, Press Release, March 6, 2019,

https://www.kaine.senate.gov/press-releases/kaine-and-young-introduce-bill-to-repeal-1991_2002-aumfs-formalizing-end-of-gulf--iraq-wars.

17. See Pub. L. No. 102-1, 105 Stat. 3, 50 U.S.C. 1541, enacted on January 4, 1991.

18. See Pub. L. No. 107-243, 116 Stat. 1498, 50 U.S.C. 1541, enacted on October 16, 2002.

19. See Kaine, supra note 16.

20. Id.

21. See Pub. L. No. 107-40, 115 Stat. 224, 50 U.S.C. 1541, enacted on September 18, 2001.

22. See Niels Lesniewski, Tim Kaine and the War on Zombie Wars, Roll Call, March 7, 2019. In the same article, Senator Todd Young, cosponsor of the

1991–2002 Iraq AUMF repeal bill, says that the failure of Congress to repeal the 1991 Iraq AUMF “illustrates the level of congressional failure to perform

its constitutionally mandated oversight role.”

23. According to Webster’s Dictionary, zombies are dead humans who through some supernatural power come back to life yet are speechless and appear

drugged. Movie zombies murder, maim, and decapitate living human beings. Many are cannibals. They are also very hard to kill, even after they are

shot. Killing a zombie usually requires decapitation of the monster. A number of zombie movies have achieved cult classic status. See, e.g., Dawn of

the Dead (1978); Night of the Living Dead (1968); Zombie (Lucio Fulci, 1979); and dozens of others. Zombie books are also popular, the most famous

being Frankenstein by Mary Shelley.

24. The 1991 Iraq AUMF cites U.N. Security Council Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677, and 678. Each UNSCR is discussed

brieﬂy in the body of this paper.

25. For a thorough, day-by-day, year-by-year chronology of Operations Desert Shield and Desert Storm, see Lieutenant Colonel Joseph P. Englehardt,

Desert Shield and Desert Storm: A Chronology and Troop List for the 1990–1991 Persian Gulf Crisis, Strategic Studies Institute, U.S. Army War College,

March 25, 1991, https://apps.dtic.mil/dtic/tr/fulltext/u2/a234743.pdf.

26. See S.C. Res. 660 (1990), http://unscr.com/en/resolutions/660.

27. See S.C. Res. 661 (1990), http://unscr.com/en/resolutions/661.

28. See Jim Garamone, Marking 20 Years Since Operation Desert Shield, American Forces Press Service, Aug. 7, 2010, https://archive.defense.gov/news/

newsarticle.aspx?id=103010.

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29. See S.C. Res. 662 (1990), http://unscr.com/en/resolutions/662.

30. Id.

31. The League of Arab States, established in 1945, is a loose confederation of 22 Arab nations, including Palestine, whose broad mission is to improve

coordination among its members on matters of common interest. See Jonathan Master and Mohammed Aly Sergie, The Arab League, Council on

Foreign Relations, October 21, 2014, https://www.cfr.org/backgrounder/arab-league. See also William Drozdiak, Arab Nations Break Silence, Condemn

Iraq, waSH. PoSt, Aug. 4, 1990, and John Kifner, Confrontation in the Gulf Arab Vote to Send Troops to Help Saudis; Boycott of Iraqi Oil Is Reported Near

100%; Bagdad Isolated, n.y. tiMeS, Aug. 11, 1990.

32. See James Gerstenzang, Bush Says 3,000 Americans Are Hostages and Warns Iraq: Gulf Crisis: “America Will Not Be Intimidated,” He Declares. Hussein

Is Held Responsible for the Safety of U.S. Citizens. Baghdad Gives Kuwait Embassies 5 Days to Close, L.A. Times, Aug. 21, 1990.

33. See S.C. Res. 665 (1990), September 25, 1990, http://unscr.com/en/resolutions/665.

34. See S.C. Res. 666 (1990), September 13, 1990, http://unscr.com/en/resolutions/666.

35. See S.C. Res. 667 (1990), September 16, 1990, http://unscr.com/en/resolutions/667.

36. See S.C. Res. 669 (1990), September 24, 1990, http://unscr.com/en/resolutions/669.

37. See S.C. Res. 670 (1990), September 25, 1990, http://unscr.com/en/resolutions/670.

38. See S.C. Res. 674 (1990), October 29, 1990, http://unscr.com/en/resolutions/674.

39. See S.C. Res. 677 (1990), November 28, 1990, http://unscr.com/en/resolutions/677.

40. See Oce of the Historian, The Gulf War, 1991, U.S. Department of State, https://history.state.gov/milestones/1989-1992/gulf-war.

41. Id.

42. See Jennifer K. Elsea and Mathew C. Weed, Declaration of War and Authorizations for the Use of Military Force: Historical Background and Legal

Implications, Congressional Research Service, Apr. 18, 2014, at 12.

43. See Jay Bybee, 26 U.S. Op. O. Legal Counsel 143, 2 (O.L.C.) (2002).

44. Id.

45. See Elsea and Weed, supra note 42, at 12–13.

46. See Pub. L. No. 102-1, January 14, 1991.

47. Id.

48. See Statement on Signing the Resolution Authorizing the Use of Military Force Against Iraq, 1 Pub. Papers of George Bush 40 (1991).

49. 50 U.S.C.A. Section 1541. See also Elsea and Weed, supra note 42, at 26. The War Powers Resolution was enacted over President Richard Nixon’s veto

in 1973 purportedly to restore a congressional role in authorizing the use of force that was thought by many to have been lost in the Cold War and the

Vietnam War. It mandates that the President consult with Congress “in every possible instance” before introducing U.S. armed forces into hostilities

and regularly afterwards. See also Bybee, supra note 43, at 11–12: “Every President has taken the position that the War Powers Resolution is an

unconstitutional infringement by the Congress on the President’s authority as Commander-in-Chief.”

50. See Statement, supra note 48.

51. See The President’s News Conference on the Persian Gulf Crisis of January 9, 1991, 1 Pub. Papers of George Bush 20 (1991). See also Elsea and Weed,

supra note 42, at 13.

52. For a review of the legal issues from a military lawyer’s perspective, including but not limited to operational law challenges in the Persian Gulf War,

see W. Hays Parks, The Gulf War: A Practitioner’s View, 10 diCk. J. int’L L. 393 (1992). Hays Parks was also one of the primary authors of the updated

and newly issued Department of Defense Law of War Manual (June 2015), which was updated in December 2016, https://dod.defense.gov/Portals/1/

Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190.

53. See Englehardt, supra note 25, at 5–10. The armed forces in the coalition totaled about 737,000, to include 190 ships and 1,700 aircraft. Thirty-ﬁve

countries, in addition to the United States, made up the international coalition.

54. Id. See also Address to the Nation on the Suspension of Allied Oensive Combat Operations in the Persian Gulf, 1 Pub. Papers of George

Bush 187 (1991).

55. Id.

56. Id.

57. See S.C. Res. 687 (1991), April 3, 1991, http://unscr.com/en/resolutions/687. See also S.C. Res. 688 (1991), April 5, 1991, http://unscr.com/en/

resolutions/688, which concerned the repression of the Iraqi civilian population and access by international organizations and demanded that Iraq

cooperate with the U.N. Secretary-General to eect the cease-ﬁre.

58. See Bybee, supra note 43, at 2.

59. See Yoram Dinstein, war, aggreSSion and SeLf-defenCe 50 (3d ed. 2001).

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60. See Lord Goldsmith (U.K. Attorney General) answer to House of Lords Question of March 17, 2003, https://publications.parliament.uk/pa/cm200203/

cmselect/cmfa/405/3030407.htm.

61. See Bybee, supra note 43, at 20. See also Regulations annexed to the Hague Convention on the Law and Customs of War on Land, October 18, 1907,

art. 36, 36 Stat. 2277, 2305 (Hague Regulations). See also Ludecke v. Watkins, 335 U.S. 160, 167 (1948), and Commercial Cable Co. v. Burleson, 255 F. 99,

104–05 (S.D.N.Y.) (L. Hand, J.), rev’d and vacated as moot, 250 U.S. 188 (1919) (“An armistice eects nothing but a suspension of hostilities; the war still

continues.”).

62. See Bybee, supra note 43, at 20. As this O.L.C. opinion notes, under Hague Regulations, “any serious violation of the armistice by one of the parties

gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.”

63. Id. at 9.

64. Id. As stated in the O.L.C. opinion: “Subsequent congressional legislation demonstrates, however, that the authorization in Public Law 102-1 remains

in eect. First, the same Congress that enacted Public Law 102-1 twice expressed its ‘sense’ that Public Law 102-1 continued to authorize the use of

force even after Iraq’s withdrawal from Kuwait. Enacted on December 5, 1991, section 1095 of the National Defense Authorization Act for Fiscal Years

1992 and 1993, Pub. L. No. 102-190, 105 Stat. 1290, 1488 (‘1992-1993 Defense Authorization Act’), contains a congressional ﬁnding that Iraq is violating

UNSCR 687’s requirements relating to its WMD program and expresses Congress’s sense that ‘the Congress supports the use of all necessary means

to achieve the goals of Security Council Resolution 687 as being consistent with the Authorization for Use of Military Force Against Iraq Resolution

(Public Law 102-1).’ And section 1096 of the 1992–1993 Defense Authorization Act expresses the same Congress’s ‘sense’ that ‘Iraq’s noncompliance

with United Nations Security Resolution 688 constitutes a continuing threat to the peace, security, and stability of the Persian Gulf region…and [that]

the Congress supports the use of all necessary means to achieve the goals of United Nations Security Council Resolution 688,’ which condemns

the repression of the Iraqi civilian population, ‘consistent with all relevant United Nations Security Council Resolutions and…Public Law 102-1.’ 105

Stat. at 1489. Second, in 1999, Congress amended Public Law 102-1 to extend the reporting requirements from every 60 days to every 90 days,

thereby indicating that the law continues in eect. See Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, div. B, § 1000(a)(7), 113 Stat. 1501,

1536 (1999).”

65. See President George W. Bush, State of the Union Address, January 29, 2002, https://georgewbush-whitehouse.archives.gov/news/

releases/2002/01/20020129-11.html.

66. Id.

67. Id.

68. See Elsea and Weed, supra note 42, at 16.

69. Id.

70. See Andrew Glass, Bush Makes Case for War with Iraq, Politico, September 4, 2002, https://www.politico.com/story/2018/09/04/this-day-in-politics-

sept-4-2002-805725.

71. See Bybee, supra note 43. The O.L.C. opinion, dated October 23, 2002, concluded that the President possesses the constitutional authority to use

military force against Iraq to protect United States national interests. That independent constitutional authority was supplemented by the 1991

Authorization for Use of Military Force Against Iraq Resolution and was consistent with international law because it was authorized by the United

Nations Security Council or would be justiﬁed as anticipatory self-defense. The opinion also cited the Authorization for Use of Military Force, Pub. L. No.

107-40, 115 Stat. 224 (2001), passed a week after the September 11, 2001, terrorist attacks, as further legal authority to use military force against Iraq.

72. See Remarks by President in Address to the United Nations General Assembly, September 12, 2002, https://georgewbush-whitehouse.archives.gov/

news/releases/2002/09/20020912-1.html. See also Elsea and Weed, supra note 42, at 16.

73. See Elsea and Weed, supra note 42, at 16–17. See also Pub. L. No. 107-243, 116 Stat. 1498.

74. See U.N. Sec. Res. 1441, https://undocs.org/S/RES/1441 (2002).

75. See Pub. L. No. 107-243 (3)(a)(1–2).

76. See Elsea and Weed, supra note 42, at 17–18: “Thus, it appears to have incorporated resolutions concerning Iraq that were subsequently adopted by the

Security Council at least up to the expiration of the UN mandate on December 31, 2008, as well as those resolutions adopted prior to the enactment

of P.L. 107-243. The authority also appears to extend beyond compelling Iraq’s disarmament to implementing the full range of concerns expressed

in those resolutions. Unlike P.L. 107-40, the President’s exercise of the authority granted is not dependent upon a ﬁnding that Iraq was associated

in some direct way with the September 11, 2001, attacks on the United States. Moreover, the authority conferred can be used for the broad purpose

of defending ‘the national security of the United States against the continuing threat posed by Iraq.’ Nevertheless, P.L. 107-243 is narrower than P.L.

107-40, as well as President Bush’s originally proposed authorization, in that it limits the authorization for the use of force to Iraq. It also requires as a

predicate for the use of force that the President determine that peaceful means cannot suce and that the use of force against Iraq is consistent with

the battle against terrorism. P.L. 107-243 further limits the force used to that which the President determines is ‘necessary and appropriate.’ Finally,

as with P.L. 107-40, the statutory authorization for use of force granted to the President in P.L. 107-243 is not dependent for its exercise upon prior

authorization by the U.N. Security Council.” Emphasis in original. Internal footnote omitted.

77. See Pub. L. No. 107-243.

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78. Courts are deeply divided over what role congressional ﬁndings should play in a court’s standing inquiry. See, e.g., Dellums v. Nuclear Regulatory

Comm’n, 863 F2d 968 (DC Cir. 1988); United Transportation Union v. Interstate Commerce Comm’n, 891 F2d 908 (DC Cir. 1989); City of Los Angeles v.

National Highway Trac Safety Admin, 912 F2d 478 (DC Cir. 1990). Interesting as those cases are, and as alive as the debate is in the courts today, the

ﬁndings at issue here do not say what the Trump Administration says they do in its NDAA Section 1264 war powers report.

79. See Tim Arango and Michael S. Schmidt, Last Convoy of American Troops Leaves Iraq, n.y. tiMeS, December 18, 2011.

80. Why removing all U.S. troops from Iraq was controversial is beyond the scope of this paper. To read more about the topic, see James Phillips, Obama

Administration Gambles on U.S. Troop Strength in Iraq, tHe daiLy SignaL, September 8, 2011. See also James Phillips, Politics Trumps Security in Obama’s

Bungled Troop Negotiations with Iraq, tHe daiLy SignaL, October 13, 2011; James Phillips, Iraqi Government Balks in Negotiations over Extending

U.S. Troop Presence, tHe daiLy SignaL, October 16, 2011; James Phillips, Abrupt End of the U.S. Military Mission Boosts Security Risks in Iraq, tHe daiLy

SignaL, December 16, 2011; James Phillips, Iraq Plunges into Chaos as Obama Administration Celebrates End of U.S. Military Presence, tHe daiLy SignaL,

December 2011; and James Phillips, Q & A: What You Need to Know About ISIS in Iraq, tHe daiLy SignaL, June 14, 2014.

81. See Ryan N. Mannina, How the 2011 US Troop Withdrawal from Iraq Led to the Rise of ISIS, Small Wars Journal, December 2018, https://

smallwarsjournal.com/jrnl/art/how-2011-us-troop-withdrawal-iraq-led-rise-isis. See also Kenneth M. Pollack, The Fall and Rise and Fall of Iraq, The

Brookings Institution, Middle East Memo Number 29, July 2013, https://www.brookings.edu/wp-content/uploads/2016/06/Pollack_Iraq.pdf, and Luke

Coey, James Jay Carafano, Thomas Spoehr, & Walter Lohman, Now Is Not the Time to Repeat Obama’s Iraq Mistake in Afghanistan, tHe daiLy SignaL,

December 26, 2018, https://www.heritage.org/middle-east/commentary/now-not-the-time-repeat-obamas-iraq-mistake-afghanistan.

82. President Trump has claimed that ISIS has been defeated. See Charles Lister, Trump Says ISIS Is Defeated. Reality Says Otherwise, Politico, March

18, 2019. After U.S. special operations personnel killed ISIS leader Abu al-Baghdadi in October 2019, Trump again claimed that ISIS was 100 percent

defeated, only to back o the claim days later, saying that the number was closer to 70 percent defeated. See John T. Bennett, Trump Walks Back

Claim of Defeating 100% of the ISIS Caliphate, roLL CaLL, October 28, 2019, https://www.rollcall.com/news/whitehouse/in-another-reversal-trump-

walks-back-claim-of-defeating-100-of-the-isis-caliphate.

83. See Robert Chesney, A Response to Bruce Ackerman: Whether the 2001 and 2002 AUMFs Are Exhausted, Lawfareblog, September 8, 2011, https://

www.lawfareblog.com/response-bruce-ackerman-whether-2001-and-2002-aumfs-are-exhausted.

84. Section 1264 of the National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91 (2017), required the Administration to provide the legal,

factual, and policy bases for the United States’ use of military force and related national security operations every year. The Obama Administration

submitted one Section 1264 report, commonly referred to as the “war powers report.” In its December 2016 report, it referred to ISIS as ISIL, which

stands for the Islamic State of Iraq and the Levant, https://www.documentcloud.org/documents/3232529-Framework-Report-Final.html#document/p1.

85. See Trump Administration, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security

Operations, undated, https://assets.documentcloud.org/documents/4411804/3-18-War-Powers-Transparency-Report.pdf, at 15.

86. Id. at 16.

87. See email by Senior Obama Administration ocial to N.Y. Times, undated, provided via email to the N.Y. Times on September 12, 2014, https://www.

documentcloud.org/documents/1301198-is-war-powers-theory-background-statement.html.

88. Otherwise known as the National Security Advisor to the President.

89. See letter from Susan Rice to John Boehner, July 25, 2014, https://www.scribd.com/fullscreen/235109249?access_key=key-

iGB8BIgK4cxNeXtuFT41&allow_share=true&escape=false&view_mode=scroll.

90. See Trump Administration, Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security

Operations, undated.

91. Id. at 3.

92. Id.

93. Id.

94. See Christopher M. Davis, “Sense Of” Resolutions and Provisions, Congressional Research Service, October 16, 2019, at 1, https://fas.org/sgp/crs/

misc/98-825.pdf.

95. Id.

96. Id.

97. See Trump Administration report, supra note 85. For the Obama Administration’s war powers report, see Report on the Legal and Policy Frameworks

Guiding the United States’ Use of Military Force and Related National Security Operations, December 2016, https://www.documentcloud.org/

documents/3232529-Framework-Report-Final.html#document/p1. See also Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Phillip Levitz, Freya

Pitts, and Sirine Shebaya, The Power to Detain: Detention of Terrorism Suspects After 9/11, 38 yaLe J. int’L L. 123 (2013); Speech by Jennifer O’Connor,

Department of Defense General Counsel, Applying the Law of Targeting to the Modern Battleﬁeld, November 28, 2016, given at New York University

School of Law, https://dod.defense.gov/Portals/1/Documents/pubs/Applying-the-Law-of-Targeting-to-the-Modern-Battleﬁeld.pdf; and Speech by Jeh

Johnson at Yale Law School, National Security Law, Lawyers and Lawyering in the Obama Administration, February 22, 2012, https://www.lawfareblog.

com/jeh-johnson-speech-yale-law-school.

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98. See The Law of Armed Conﬂict, the Use of Military Force, and the 2001 Authorization for Use of Military Force, hearing before the Senate Armed

Services Committee, May 16, 2013, https://www.armed-services.senate.gov/hearings/oversight-the-law-of-armed-conﬂict-the-use-of-military-

force-and-the-2001-authorization-for-use-of-military-force. See also Jack Goldsmith, testimony before United States Senate, Committee on Armed

Services, May 16, 2013, https://www.armed-services.senate.gov/imo/media/doc/Goldsmith_05-16-13.pdf; Charles Stimson, testimony before United

States Senate, Committee on Armed Services, May 16, 2013, https://www.armed-services.senate.gov/imo/media/doc/Stimson_05-16-13.pdf; and Scott

R. Anderson, A Primer on Sen. Merkley’s Proposal to Replace the AUMF, Lawfareblog.com, May 25, 2018, https://www.lawfareblog.com/primer-sen-

merkleys-proposal-replace-aumf.

99. See Charles D. Stimson and Hugh Danilack, The Case Law Concerning the 2001 Authorization for Use of Military Force and Its Application to ISIS,

Heritage found. LegaL MeMoranduM no. 203, April 17, 2017, https://www.heritage.org/defense/report/the-case-law-concerning-the-2001-authorization-

use-military-force-and-its.

100. On October 30, 2017, the United States Senate Committee on Foreign Relations held a hearing on The Authorizations for the Use of Military Force:

Administration Perspective. The two witnesses were The Honorable Rex Tillerson, Secretary of State, and The Honorable James Mattis, Secretary of

Defense. See https://www.foreign.senate.gov/hearings/the-authorizations-for-the-use-of-military-force-administration-perspective_103017.

101. See Paulsen, supra note 1, at 128.

102. See Yoo, supra note 9, at 265.

103. Id.

104. Id.

105. See Paulsen, supra note 1, at 131. See also Gregory Sidak, To Declare War, 41 duke L.J. 27, 99–108 (1991).

106. See Paulsen, supra note 1, at 131. See also Mark W. Mosier, The Power to Declare Peace Unilaterally, 70 U.Chi.L.Rev. 1609 (2003).

107. The ﬁve declared wars were the War of 1812, ended by the Treaty of Ghent; Mexican–American War, ended by the Treaty of Guadalupe Hidalgo;

Spanish–American War, ended by the Treaty of Paris; World War I, ended by the Treaties of Berlin, U.S. Austrian Peace Treaty, and Hungarian Peace

Treaty; and World War II, ended by the Japanese Instrument of Surrender, Treaty of San Francisco, German Instrument of Surrender, Treaty on the

Final Settlement with Respect to Germany, and Treaty of Vienna with Austria.

108. See Elsea and Weed, supra note 42, at 5–19.

109. The question of when the war powers that arose from the declarations of war terminated was addressed by the Supreme Court in two cases. See

Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948), and Commercial Trust Co. v. Miller, 262 U.S. 51 (1923). The war powers end not when the peace treaty

is signed or the President declares that hostilities are over but when Congress concludes that the need for the power no longer exists. See also David

A. Simon, Ending Perpetual War? Constitutional War Termination Powers and the Conﬂict Against al Qaeda, 41 Pepp.L.Rev. 685 (2014) (arguing that

terminating war without meaningful cooperation between the President and Congress generates tension with the principle of separation of powers

that underpins the U.S. constitutional system, with the Framers’ division of treaty-making authority, and with the values they enshrine).

110. See Pub. L. No. 93-475, Section 3, 88 Stat 1439, October 26, 1974. But see Matthew Waxman, Remember Eisenhower’s Formosa AUMF, Lawfareblog,

January 29, 2019. See also Elsea and Weed, supra note 42, at 8.

111. See Joint Resolution of May 9, 1957, Pub. L. No. No. 87-5, 71 Stat. 5. See also Matthew Waxman, Remembering Eisenhower’s Middle East Force

Resolution, Lawfareblog, March 9, 2019.

112. See S.J. Res. (116th Congress, 1st Session), Joint Resolution to Repeal the Authorizations for Use of Military Force Against Iraq and for Other Purposes,

Senators Tim Kaine and Todd Young, https://www.scribd.com/document/401216220/Kaine-Young-Introduce-Bill-to-Repeal-1991-2002-AUMFs-

Formalizing-End-of-Gulf-Iraq-Wars.

113. See Senator Tim Kaine, Speech on the ﬂoor of the United States Senate, November 30, 2016, https://www.kaine.senate.gov/press-releases/kaine-

renews-call-for-congress-to-vote-on-war-against-isil-encourages-new-debate-on-changing-security-challenges.

114. Id.

115. Id.

116. See Benjamin Wittes, The Consequences of Congressional Inaction on the AUMF, Lawfareblog.com, April 8, 2015.

117. Id.

118. See Senator Todd Young, Press Statement, March 6, 2019, https://www.young.senate.gov/newsroom/press-releases/young-and-kaine-introduce-bill-

to-repeal-1991-and-2002-aumfs-formalizing-end-of-gulf-and-iraq-wars.

119. Kryptonite is a ﬁctional alien mineral that has the property of depriving Superman of his powers. It came from the comic book series Superman, ﬁrst

released in June 1938.

120. While Congress is at it, Members might also consider repealing the 1957 Middle East Force Resolution.