What is the AUMF? Does it allow the US to wage War on Terror anywhere?
Yes
There is a difference between a “declared war” and “the Authorization for the Use of Military force”:
In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of enemy property, and the apprehension of enemy aliens. While a formal declaration was once deemed a necessary legal prerequisite to war and was thought to terminate diplomatic and commercial relations and most treaties between the combatants, declarations have fallen into disuse since World War II. The laws of war, such as the Hague and Geneva Conventions, apply to circumstances of armed conflict whether or not a formal declaration or authorization was issued.
With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.
Most statutory standby authorities do not expressly require a declaration of war to be actualized but can be triggered by a declaration of national emergency or simply by the existence of a state of war; however, courts have sometimes construed the word “war” in a statute as implying a formal declaration, leading Congress to enact clarifying amendments in two cases. Declarations of war and authorizations for the use of force waive the time limitations otherwise applicable to the use of force imposed by the War Powers Resolution. (http://www.au.af.mil/au/awc/awcg...)
However, the most critical aspect of the “declaration of war” is that it is performed by Congress in order to “check and balance” the powers of the Executive. While the President does have certain powers under the War Powers Resolution, they are limited in nature, scope and time. Only Congress can waive these limitations (in part via an AUMF or in full via a declaration of War) as well as approve the funding for military actions.
Early American jurisprudence drew a distinction between general, or perfect, war and limited, or imperfect, war, and understood a declaration of war under Article I, § 8, of the Constitution to commit the nation to a general war.
Justice Washington, in Bas v. Tinghy, described the distinction as follows:
“It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war are authorised to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. …[H]ostilities may subsist between two nations more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those who are authorised to commit hostilities, act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention, by force, between some of the members of the two nations, authorised by the legitimate powers.”
Justice Chase, more simply, stated: “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.”
Thus, at least in the 18th and 19th centuries, authorizations for the use of force were understood to be included within Congress’s power to declare war and to have narrower legal consequences than declarations of war. (http://www.au.af.mil/au/awc/awcg...)
Therefore, not only is Congress executing their Constitutional requirements by balancing and checking the President’s power through the use of an AUMF vs. a declaration of war but Congress is actually doing more to limit the President’s power by doing it in this fashion. Which arguably makes it the more preferable option.
Under ordinary circumstances the President exercises the powers conferred on him by the Constitution and by statutes enacted by Congress. As noted in the preceding section, in extraordinary circumstances a number of additional statutory powers may become available; and his Constitutional powers are likely to be given a generous interpretation by the courts. The standby statutory authorities potentially available to the President and the executive branch number in the hundreds. Some are triggered by a declaration of war, some by the existence of a state of war (and, thus, also by a declaration of war), and some pursuant to a declaration or the existence of national emergency. Most can be triggered by one or more of the foregoing circumstances. None of these special authorities appears to be triggered by an authorization for the use of force (unless and until it leads to a state of war). With respect to those statutes that are triggered by the existence of a national emergency or of a state or time of war, the determination of whether such a condition exists would be made in the first instance by the executive branch, unless the statute provides otherwise….the standby authorities that become available to the President and the executive branch upon (1) a declaration of war, (2) the existence of a state of war, and (3) pursuant to a declaration of national emergency. It is important to emphasize that a declaration of war activates not only the statutes listed in the first subsection but also — because a declaration of war automatically creates a state of war — those listed in the second section. The latter statutes are listed separately because they can come into effect even if a declaration of war is never adopted. (https://fas.org/sgp/crs/natsec/R...)
The lists are below but you should review the above link to understand what these authorities mean:
(1) Statutory Authorities Triggered by a Declaration of War
- Congressional Budget Act
- Agricultural Exports
- Armed Forces
- Coast Guard
- Small Business Administration
- Unilateral Trade Sanctions
- Armed Forces Retirement Home
- Statutes of Limitation
- Tort Claims Against the Federal Government
- Deferral of Civil
- Works Projects
- Nuclear Regulatory Commission
- Alien Enemy Act
- National Defense Stockpile
- National Security Agency (NSA) Personnel Security
- Chemical and Biological Warfare Agents
- National Emergencies Act
- Foreign Intelligence Surveillance Act (FISA)
- Selective Service Act
(2) Statutory Authorities Triggered by the Existence of a State of War (and Thus Also by a Declaration of War)
- Administrative Procedure
- Federal Employees
- Aliens
- Armed Forces
- Reserves
- Trading with the Enemy Act
- Coast Guard
- Federal Energy Regulatory Commission
- Tennessee Valley Authority
- Criminal Prosecutions
- Imports
- Student Financial Aid
- Neutrality
- Miscellaneous
- Accounting and Contracts
- Contracts
- National Guard
- Armed Forces
- National Oceanic and Atmospheric Administration
- Ocean Dumping
- Patents
- Armed Forces
- Veterans’ Care
- Reemployment Rights
- Sale of War Supplies to Foreign States
- Defense Structures in the District of Columbia
- Public Contracts
- Public Health Service
- Infectious Diseases
- Nuclear Energy
- Public Lands
- Natural Resources
- Destruction of Records
- Shipping
- Communications
- Railroads
- Procurement of Ships and Material During War
- Protection of Ships and Harbors
- Federal Emergency Management Agency
- Central Intelligence Agency (CIA) Retirement Plan
- International Emergency Economic Powers
- Trading with the Enemy Act
- Selective Service Act
(3) Statutory Authorities Triggered by Declaration or Existence of National Emergency
- Federal Employees
- Agriculture
- Armed Services
- Fort McHenry
- Customs Service
- Barro Colorado Island
- Foreign Relations
- Federal Highways
- National Oceanographic and Atmospheric Administration
- Basic Pay of the Uniformed Services
- Veterans Affairs
- Davis-Bacon Act
- Real Property and Contracts
- Public Health
- Ryan White Comprehensive AIDS Resources Emergency Act of 1990
- Prohibition of Compensation
- Relocation
- Resources
- Merchant Marine
- Airports
- Modification of Defense Contracts
- National Emergencies Act
- International Economic Emergency Powers Act
- Defense Production Act
Bottom line: When a war or national emergency is declared, the President gets powers that our wide ranging and touching all parts of American society. An AUMF (which has been the preferred method for Congress to meet their Constitutional responsibilities to “declare war”) can be used to significantly limit the President’s powers and not trigger these automatic authorities. (This is also why you will sometimes here discussions about “combat operations” that are not part of a “war.”)
Statutory delegations from Congress — exist on a stand-by basis and remain dormant until the President formally declares a national emergency. These delegations, or grants of power, authorize the President to meet the problems of governing effectively in times of crisis. Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.Furthermore, Congress may modify, rescind, or render dormant such delegated emergency authority. (CRS Report for Congress)
And of course, trying to use this to defend or bash one President in particular is folly given that it has a long and glorious historical tradition:
In other words, both “declarations of war” and “authorizations” have been a part of American constitutional tradition since the earliest days. If every “undeclared” conflict is a violation of the Constitution, we need retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes.
A “declaration of war” has always been a specific policy tool — a blunt one, and one that many presidents, and Congresses, have chosen not to use. “Authorizations,” by contrast, permit the two branches to agree on limited war aims. An authorization can lapse without a formal surrender; it can permit military action short of total war. It’s a tool that any government needs, and any rational constitution provides. (Yes, Congress Can Authorize War Without Formally ‘Declaring’ It)
And lastly, while “declarations of war” used to have international implications that influenced trade regulation, diplomatic missions, and the like, the world has changed. And in the case of “declaring war” not necessarily for the better (with regards to those who insist upon a “declaration of war”):
In addition, international law (which is very much part of the Constitution) has changed during the last 115 years. The notion of a “declaration of war” is now both obsolete and meaningless. Under both the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945), war is no longer a lawful tool of national policy. With few exceptions, states may use military force only in self-defense, or with the permission of the U.N. Security Council. Insisting that Congress “declare war” is not just simple-minded, but self-defeating: It is asking the nation to solemnly declare itself to be an international outlaw. (Yes, Congress Can Authorize War Without Formally ‘Declaring’ It)
So bottom line: Congress is fulfilling its Constitutional duty to “declare war” even when it is just using an AUMF and we don’t want Congress to formally “declare war” in the World War II sense as: a) it puts us at odds with international law and b) it gives the Executive branch much more sweeping and unchecked powers. An AUMF is, in fact, a far superior option to a “declaration of war.”
As for the “irrational” defense of Bush, I’m not sure what their argument must be on this case. My guess would be it having something to do with the treatment of prisoners, which is not a factor. The Geneva Conventions still apply regardless of a “formal declaration of war” or even whether both parties are signatories. But I’m not interested in defending or castigating President Bush. What is provided here are the facts of the matter regarding War and AUMF.
Re-printed with permission by original author BK Price
