By declaring that our troops will leave Afghanistan on Sept. 11, the Biden administration has removed the last possible justification for a bill which I supported two decades ago as a member of Congress — to authorize military action against those who committed the first major attack on U.S. soil since Pearl Harbor.
That 2001 authorization passed both houses of Congress virtually unanimously; only one House member, Rep. Barbara Lee (D-Calif.), voted against it. It says that “the President is authorized 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, 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.” The resolution enabled military action which degraded significantly the ability of al Qaeda to attack U.S. forces or territory. Subsequently, the Obama administration killed Osama bin Laden, the leader of al Qaeda who had been hiding in Pakistan.
Today, 75 House members and 31 senators who voted for the 2001 Authorization to Use Military Force (AUMF) resolution still serve in Congress. I bet that none of them expected it would still be in force two decades later and used to justify 41 military actions in 19 countries.
Consider that groups like ISIS and al Shabaab did not exist in 2001. At least one group, the Northern Alliance in Afghanistan, was on our side against al Qaeda. And yet, Congress — whose members swear allegiance to the Constitution, which confers on them the solemn duty to declare war — has not mustered the political will to repeal and replace the threadbare 2001 AUMF. In addition, Congress refuses to use its real leverage: the denial of funding for military missions outside the scope of the 2001 AUMF. Money continues to flow to the Pentagon without adequate direction and oversight.
To be fair, many in both parties have tried. Former Senate Foreign Relations Committee Chair Bob Corker (R-Tenn.) and Sen. Tim Kaine (D-Va.) spoke at the Wilson Center in 2013 and 2014, both pushing an early bipartisan effort to repeal and replace the 2001 resolution with one that would name ISIS and require review by Congress every four years. To not act, Sen. Corker said at the time, would be “irresponsible.” Since then, there have been several attempts to offer alternatives, plus attempted amendments to the National Defense Authorization Act to end the AUMF. President Obama sent a version to the Hill in 2015, which was dead on arrival.
So now what? President Biden already is taking steps to end our military mission in four months — a tough decision, but one I personally support. And once the U.S. deployment in Afghanistan ends, it is hard to imagine how the AUMF survives. That also will raise questions about the status of so-called 9/11-related military combatants being held in Guantanamo Bay Prison, or “Gitmo.”
So, what about Gitmo, another problem from hell? As I suggest in my new book, we need a doctrine of preventive detention to permit, within strict limits, continuing to hold those we cannot try (because for many the evidence is tainted) but who pose a clear threat to American security if released. We would outlaw enhanced interrogation procedures, develop a new statutory framework to include rules and procedures to govern interrogations for non-U.S. citizens overseas, and would move those individuals too dangerous to discharge into preventive detention. The prison at Gitmo would close and the few remaining prisoners would be transferred to maximum-security prisons in the U.S. capable of holding them. The cases would be reviewed on a periodic basis — likely every year — by an independent federal court.
These are hard questions, and both need better answers. Congress, working with the administration, should find the way forward to provide room for a president to invoke his or her authority as commander in chief on an emergency basis, while also making clear what risks the American people are prepared to take and to pay for. I have written previously that this administration is endeavoring to make foreign policy relevant to average Americans by including threats from pandemics, climate and terrorism. Here is an opportunity to re-engage Congress as a true partner — something Biden should embrace, given his experience chairing the Senate Foreign Relations Committee.
None of this is easy — but past policy insanity isn’t destiny. Four decades after the Cold War ended, can we do this? We must.
Jane Harman is distinguished fellow and president emerita of the Woodrow Wilson International Center for Scholars. She served nine terms in Congress as a Democratic representative from California and was ranking member on the House Intelligence Committee. Her book, “Insanity Defense: Why Our Failure to Confront Hard National Security Problems Makes Us Less Safe,” will be released May 18 by St. Martin’s Press.