AUMF Repeal Bill Would End Extraordinary War Powers Granted After 9/11

WASHINGTON -- The sweeping law that allows the president to wage an unlimited global war on terror would be repealed under a bill set to be offered this week.

The repeal measure, crafted by Rep. Adam Schiff (D-Calif.), would end the 2001 Authorization to Use MIlitary Force, or AUMF, in 2015, as the U.S. finally exits the war in Afghanistan.

Two administrations have relied upon the AUMF to use military force in Afghanistan and around the world. They have also used the law to justify practices that lately have become more controversial, including drone strikes that have killed at least four Americans and the indefinite detention of terror suspects at Guantanamo Bay, Cuba, where more than 100 detainees are currently on a hunger strike.

President Barack Obama recently called for the repeal of the authorization, saying it promotes perpetual war and grants presidents too much power. Leaders in the Senate have also called for its repeal or revision, noting that while the AUMF is supposed to target al Qaeda, the Taliban and allies who helped carry out the Sept. 11 attacks, it has been interpreted to be used far more broadly.

"The nature of the threat we face is different now," said Schiff. "The authorities that we're using are straining at their legal edges to authorize force against groups that didn't exist on 9/11 or that may be only loosely affiliated with al Qaeda."

"I think the timing is right, particularly given the president's speech 10 days ago," he added, arguing that Congress can no longer afford to "kick the can" down the road on such a vital piece of national security law, one that is now 12 years removed from the event that sparked it.

"Congress has a long history over the last decade of abdicating these tough questions because they're difficult," he said.

The questions around the AUMF are indeed difficult. In addition to being used to answer for indefinite detention and the targeted killings of Americans overseas, Congress has used the measure as a basis to pass laws expressly permitting the military to detain Americans without trial. The Obama administration has declared it will not hold U.S. citizens under that authority, but reserves the right to detain the 166 captives at Guantanamo.

But without the AUMF in force, Congress and the administration would have to decide how to deal with prisoners of war in the absence of a specific war. While dozens of captives at Guantanamo are cleared to be released, many are deemed threats to the United States who cannot be tried or let go.

"That is the most difficult kernel to pop," said Schiff. "There is still a remaining group of people for whom the evidence is either highly classified or highly problematic because it was a product of torture. And that problem remains to be solved."

Simply freeing those Guantanamo detainees is not an option, he said. "There will be a need for continued detention, even after the expiration of the AUMF," Schiff said, citing a World War II precedent for handling prisoners of war.

"I don't know that the authority to detain enemy combatants would end with AUMF. But I do think that Guantanamo ought to come to an end, ideally to match up with the expiration o the AUMF in about 18 months," he said.

Schiff's effort comes amid the recent revelations of the breadth of the National Security Agency's ability to spy on Americans -- an authority that stems from a separate law also inspired by the 2001 terror attacks, the PATRIOT Act. It also comes as observers on both the left and right have expressed greater suspicion of the executive branch's use of power in targeting reporters, whistleblowers and conservative groups.

Schiff, a member of the House Intelligence Committee, said the broader debate provides "context" for his measure, but evaluating the AUMF and the type of force Congress allows the president to use in the war on terror is a separate, if equally difficult, matter.

"There's probably a more substantial consensus that the existing AUMF is outdated and probably should be replaced," he said. "There's a lot less consensus about what should come after."

Ending the AUMF, he said, would either force Congress to grapple with that question -- and confront the defacto policy of perpetual war -- or allow the president to grow even more powerful.

"If we authorize a new and more limited AUMF, we are nonetheless continuing a war footing," Schiff said. "On the other hand, if we don't and the president takes these actions under his Article II power [of the Constitution], then we're broadening the power of the presidency to act unilaterally."

Schiff may offer his bill as an amendment to this year's National Defense Authorization Act when it's up for debate in the House this week, or as a standalone measure. He plans to introduce the bill Tuesday.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.