Q&A: Professor Hathaway on Presidential War Powers and the War on Terror

Within hours of the attacks of Sept. 11, 2001, a law was drafted that would provide the legal basis for the war on terror for years to come. Congress then passed the 2001 Authorization for the Use of Military Force (AUMF) days later with almost no opposition. In the years since, however, the law has been called into question by many who have argued that the law gives the President too much latitude and has been used to justify actions beyond its original scope.

Oona A. Hathaway ’97, the Gerard C. and Bernice Latrobe Smith Professor of International Law and Director of the Yale Law School Center for Global Legal Challenges, has been a prominent part of the conversation. In March, she testified about the authorization before the House Committee on Foreign Affairs in a hearing on reclaiming congressional war powers. Hathaway, a member of the Advisory Committee on International Law for the Legal Adviser at the United States Department of State since 2005, has also frequently been sought by the media for comment and analysis on the subject.

Hathaway answered questions about the 1991, 2001, and 2002 authorizations for the use of military force as the 20th anniversary of Sept. 11 and the fall of Afghanistan have brought renewed attention to them.

Q: When you testified before the House this year, you spoke in favor of repealing both the 1991 and 2002 Authorizations for the Use of Military Force (AUMFs) in Iraq, calling it “wise” to do so. Why?

A: I support repealing the 1991 and 2002 AUMFs because they have far outlived their usefulness. The 1991 AUMF permitted then-President George H.W. Bush to use military force pursuant to U.N. Security Council Resolution 678, a resolution that required Iraq, then led by Saddam Hussein, to withdraw from Kuwait, which it had invaded and occupied. The 2002 AUMF was enacted by Congress over fears that Saddam Hussein’s Iraq possessed weapons of mass destruction that posed a direct threat to the United States and its allies. The purposes of these authorities have long ago been met. The government of Iraq was long ago expelled from Kuwait, the U.N. resolutions referred to in the resolutions have long since expired, and Iraq does not pose a threat to the United States or its allies. Leaving these AUMFs on the books simply leaves the door open to their misuse without giving presidents any additional legitimate basis for military action. Indeed, the Biden Administration has made clear that it is not relying on these AUMFs for any current military operations and that it supports repealing them both.

Q: There have been calls to “repeal and replace” the 2001 Authorization for the Use of Military Force for years. Why has this authorization been controversial for so long?

A: The 2001 AUMF was enacted on Sept. 18, 2001 — mere days after the Sept. 11 attacks on the United States. The authorization was necessarily vague because the government was not yet entirely confident as to the group or groups responsible for the attack. It was also the first time that the United States had effectively declared war on a nonstate actor group. The AUMF 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 Sept. 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.” Through a series of interpretive moves over the course of two decades by Republican and Democratic administrations alike, it has been stretched and pulled far beyond its plain meaning and is now treated by the government as a blank check for battling jihadist groups around the world. Several members of Congress have made clear that it is now being used to support military operations that they never dreamed of when they voted for the authorization. The only reason it has not yet been repealed is that there has been little agreement on the replacement. But I am hopeful that we are beginning to develop enough consensus that reform may now be possible.

Q: At the time of your testimony earlier this year, many observers thought the time might finally be right for reforms to go forward. Is future reform still likely now given events like the fall of Afghanistan?

A: I think that, if anything, the end of U.S. ground presence in Afghanistan should make reform more likely, not less. The 2001 AUMF was the legal basis under which the Bush Administration launched the military operation in Afghanistan, leading to the overthrow of the Taliban government. Now that the U.S. has left Afghanistan, that ends a chapter that began with the Sept. 11 attacks. It is clearer now more than ever that we need to step back and ask what authorities the president needs to defend the United States against threats that exist today, not the threats of 20 years ago.

Q: How do you approach teaching students about the 2001 and 2002 AUMFs and related issues in your class?

A: I approach it differently in different classes. In my Constitutional Law small group, which I am teaching this term, I am using the debate over the AUMFs and war powers to help the students understand separation of powers, checks and balances, and the growth of unilateral executive power. In my advanced Foreign Relations and International Law course last year, we examined whether existing Congressional oversight of executive decisions to use force was sufficient for cyber operations and other forms of modern warfare. We then wrote a co-authored article, forthcoming in the William & Mary Law Review, entitled “Congressional Oversight of Modern Warfare: History, Pathologies, and Proposals for Reform.”