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No End in Sight

Republicans’ dangerous effort to change the way we fight the war on terror.

On October 11, 2000, then-Texas Governor George W. Bush and Vice President Al Gore took their seats at a table on the stage of Wait Chapel at Wake Forest University in Winston-Salem, North Carolina, for their second presidential debate. The event was billed as a conversation. Jim Lehrer, the polished public TV anchor, was the moderator, and he took the candidates through an eclectic assortment of national issues, from gay marriage to education reform. On foreign policy, Lehrer asked how the rest of the world should view the United States.

“It really depends,” Bush said, “upon how our nation conducts itself in foreign policy. If we’re an arrogant nation, they’ll resent us. If we’re a humble nation, but strong, they’ll welcome us.” Gore agreed. The “idea of humility is an important one,” he said, but humility was not enough. America had to have “a sense of mission in the world.” The status as the world’s only superpower created an obligation, Gore believed, to “project the power for good that America can represent.”

All of this came back to me recently as the Republican leadership in the House of Representatives began dangerously playing with the terms of the 2001 Authorization for the Use of Military Force (AUMF). Congress passed the AUMF three days after September 11, 2001. It authorized the president “to use all necessary and appropriate force” against the countries, people, and groups that “planned, authorized, committed, or aided” the September 11 attacks, to protect America from further terrorist violence. The vote in the House was 420-1, in the Senate it was 98-0.

Given the great fear that gripped the country at the time, the AUMF was a pretty carefully written piece of work. While on the one hand, it permitted the president to use force at his discretion, on the other hand, it limited his decision-making by insisting that military action be tethered to September 11 and intended solely to prevent “future acts” of terrorism against the United States.

Fast on the heels of Osama bin Laden’s death, however, House Republicans have proposed a new AUMF, the language of which is very troubling. This version authorizes the president to use whatever military force he considers necessary and appropriate against those who “are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces.” The language insisting upon a connection to September 11 has been removed, along with the requirement that military action be intended to prevent “future acts” of terrorism against the United States. An even greater concern with the proposed AUMF is that no one quite knows what “forces” might be considered “associated,” or what “support” is “substantial.” Congress has not troubled itself with definitions. One would have hoped the Obama administration would have been more precise. After all, it is the entity that will wield this new power. But, in the fusty language only lawyers could love, the administration has said, “It is neither possible nor advisable … to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support,’ or the precise characteristics of ‘associated forces,’ that are or would be sufficient to bring persons and organizations within the foregoing framework [of the AUMF].” They know it when they kill it, evidently.

This is not mere legislative tinkering, because the AUMF is what keeps the war within bounds. Without it, the president would act unilaterally, solely in his capacity as commander in chief. That was the much-lamented approach the Bush administration wanted to take; it chafed at the minor restrictions imposed by Congress and even pressed the extravagant view that the limits of the law are coterminous with the president’s wants and wishes. The Obama administration has so far taken the more responsible position that its power in the so-called “war on terror” derives entirely from the AUMF. If this is the principle the administration is operating from, however, when you change the AUMF, you change the war. And the new AUMF, with its nebulous definitions and lack of reference to September 11, would change the war for the worse. Moreover, it would have no expiration date, which means that the next president—President Bachmann, for instance—would inherit the new AUMF and all the power it bestows.

Just as fundamentally, though, the proposed changes to the AUMF illustrate broader changes in American thought that have largely escaped comment. One of the most cherished images of American identity is that of a reluctant warrior. The true American, we are told, is slow to anger, quick to forgive, and eager to move on. War is not a natural condition for the person Hector St. John de Crèvecœur called, “this new man, this American.” War must never be allowed to grasp as much as it might and feast as long as it can. This is what accounts for the sentiment expressed by a president who served within the memory of most people alive today. “The greatest honor history can bestow is the title of peacemaker. This honor now beckons America—the chance to help lead the world at last out of the valley of turmoil and onto that high ground of peace that man has dreamed of since the dawn of civilization.” So said Richard Nixon.

The cold war tested this ideal, of course, but our engagements then were mostly proxy wars designed to maintain some rough parity between global superpowers. Today, that justification has long since collapsed, and no one credibly suggests that the threat of transnational terrorism is even remotely comparable to the threat posed by the former Soviet Union. Yet the proposed AUMF authorizes a substantially greater role for the U.S. military than it had even at the height of the cold war: the use of force against an enemy the Obama administration considers it “neither possible nor advisable” to describe, anywhere in the world, without regard to whether the proposed targets had anything to do with September 11 or whether they threaten “future acts” against the United States. There is no end in sight. Whatever else may be true, this is not what the founders intended, and not what the nation has practiced.

The new AUMF is unkind to another sacred image of American identity as well. Because we believe ourselves to be reluctant warriors, we like to see bursts of wartime hysteria as excusable reactions to an unfamiliar condition. The country is simply not itself during these moments. Metaphors of bewilderment, wandering, and confusion predominate, and the country goes astray. But, if this narrative makes sense at all, it is only because we believe our madness is greatest when the conflict begins. The narrative supposes, in other words, that, while we are apt to stray from our true path at first, we will recover with the passage of time. Yet, nearly ten years after September 11, days after the death of Osama bin Laden, and in the absence of any imminent threat, Congress is poised to give President Obama and his successors substantially more authority to use force than it granted to President Bush only 72 hours after the attacks. It is an odd and distinctly un-American state of affairs when the clamor for war outpaces the war itself.

We often hear that the attacks of September 11 “changed everything.” It would be sad indeed if, among the things that collapsed and changed that day, was the salutary idea that we might be “a humble nation,” determined to “project the power for good that America can represent,” as Bush and Gore put it back in the 2000 debate. For these are not merely platitudes to be trotted out days before an election. They are the ideals that sustain us through adversity. They are durable, and can withstand a few seasons of neglect; we can ignore them for a time, as we have often done, without putting our character greatly at risk. But there is a limit. We cannot traduce our values with impunity, lest when we turn to them, we find they are no longer ours.

Joseph Margulies is a clinical professor of law at Northwestern University School of Law and associate director of the Roderick MacArthur Justice Center. He is the author of Guantánamo and the Abuse of Presidential Power and is writing a new book, Like a Single Mind, on the changes in American thought produced by September 11.

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