Report: Overkill: Reforming the Legal Basis for the U.S. War on Terror

After the 9/11 attacks, the U.S. Congress passed a use of force authorisation that successive presidents have used to expand military action ever further. As part of their series The Legacy of 9/11 and the “War on Terror”, the International crisis Group argues that Washington should enact a new statute that promotes transparency and narrows the war’s scope.

One week after al-Qaeda’s shocking attacks of 11 September 2001, the U.S. Congress authorised President George W. Bush to use all necessary and appropriate force against the group and those who aided and harboured them. The 2001 Authorisation for Use of Military Force (or AUMF) became the legal foundation for the U.S. intervention in Afghanistan, but it also became much more. As the Bush administration and its successors expanded militarised counter-terrorism operations (often referred to as the “war on terror”), they did not seek fresh authorisations from Congress. Rather, they developed novel legal theories to explain why the 2001 AUMF afforded them all the authority they felt they required. Over the course of four U.S. presidential administrations, the anti-jihadist struggle has involved hostilities with at least seven groups in a dozen or more countries; while the legal basis has not always been clear, in the majority of cases it has been the 2001 AUMF. Against the backdrop of mounting criticism, the Biden administration has promised to review the war on terror’s policy and legal frameworks, but its appetite for major legal reform seems limited.

This report describes how U.S. executive branch lawyers and policymakers transformed the war’s scope through unilateral interpretation of the 2001 AUMF and discusses the costs of this approach, including the erosion of Congress’s role as a check on imprudent war-making. It suggests steps both the executive and legislative branches of the U.S. government could take to reform the 2001 AUMF in a way that would enhance Congressional and public scrutiny of the war on terror and increase accountability for key war-related decisions on the part of elected officials in both political branches of the U.S. government.

The report focuses primarily on military activities conducted under the 2001 AUMF and therefore does not address conflicts pursued by the U.S. under separate authority, such as the 2003 Iraq war, the 2011 Libya intervention or involvement in the Saudi-led campaign in Yemen that began in 2015. It draws from scholarly literature, academic reports and interviews conducted largely between May and September 2021 with over 30 current and former U.S. executive branch officials (including members of the Crisis Group staff who contributed to the report), as well as Congressional staff.

Author: International crisis Group

Date: 17 September 2021



Author: International Crisis Group

Date: 17.09.2021

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