This week marked the 22nd anniversary of the opening of the Guantánamo Bay detention facility, the infamous prison on the island of Cuba designed to hold detainees from this country’s Global War on Terror. It’s an anniversary that’s likely to go unnoticed, since these days you rarely hear about the war on terror — and for good reason. After all, that response to Al Qaeda’s 9/11 attacks, as defined over the course of three presidential administrations, has officially ended in a cascade of silence. Yes, international terrorism and the threat of such groups persist, but the narrative of American policy as a response to 9/11 seems to have faded away. Two and a half years ago, the Biden administration’s chaotic withdrawal from the 20-year-long Afghan War proved to be a last gasp (followed the next summer by the killing of Ayman al-Zawahiri, successor as Al Qaeda’s leader after Osama bin Laden was killed in 2011).
But Guantánamo, a prison that, from its founding, has violated US codes of due process, fair treatment, and the promise of justice writ large isn’t the only unnerving legacy of the war on terror that still persists. If indefinite detention at Guantánamo was a key pillar of that war, defying longstanding American laws and norms, it was just one of the steps beyond those norms that still persist today.
In the days, weeks, and even years following the attacks of September 11, the US government took action to create new powers in the name of keeping the nation safe. Two of them, more than two decades after those attacks, are now rife with calls for change. Congress created the first just a week after 9/11 (with but a single no vote). It authorized unchecked and unending presidentially driven war powers that could be used without specified geographical limits — and, strangely enough, that power still remains in place, despite recent congressional efforts to curtail its authority. The second, the expansive use of secret surveillance powers on Americans, is currently under heated debate.
The very first new authority created in the name of the war on terror was the Authorization for the Use of Military Force, or AUMF, passed by Congress one week after the 9/11 attacks. It gave the president the power 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.
Unlike past declarations of war or authorizations for war in American history, it was staggeringly vague. It named no actual enemy or geographical locations. It made no reference to what conditions would end the hostilities and the power of that authorization. It was in essence a blank check for presidential war powers, as Representative Barbara Lee (D-Calif.), the single member of Congress to vote no on its passage, warned at the time and has reiterated over the years.
It was also a game-changing authorization. Not only did it lack specifics, but it stripped Congress of its constitutionally authorized power to declare war. In the war on terror, Congress would defer to the president who could decide on his own when and where to launch attacks.
Over the course of the last two-plus decades, that 2001 AUMF has been used repeatedly to do exactly what Barbara Lee feared — namely, broaden the president’s power to commit acts of war against not just the terrorist groups who conspired in the 9/11 attacks, but groups in countries far and wide. According to the Costs of War Project at Brown University’s Watson Institute, as of 2021, it had been used in at least 22 countries, including Afghanistan, Djibouti, Eritrea, Ethiopia, Georgia, Iraq, Kenya, Niger, Pakistan, the Philippines, Somalia, and Yemen.
Twenty-two-and-a-half years later, in April 2023, Congressman Gregory Meeks, (D-N.Y.), ranking member of the House Foreign Affairs Committee, acknowledged that the 2001 AUMF had indeed become, in the words of fellow Democrat Annie Kuster (D-N.H.), a blank check for presidents from both parties to wage war around the world.
There have been calls for the repeal of that AUMF over the years, including from — you undoubtedly won’t be surprised to learn — Representative Lee (repeatedly). This past fall, several such bills were introduced in both the House and Senate, including a bipartisan version by Senator Rand Paul (R-Ky.).
In the spring of 2023, Representative Meeks submitted his bill to replace the 2001 AUMF with a new one. In doing so, he sought to reestablish Congress’s constitutionally granted power to declare war, emphasized the statutory obligation of the president to brief Congress after launching any attack, and added that the president must brief Congress on a regular basis as to the uses of the AUMF.
