Jameel Jaffer,
Director, Knight First Amendment Institute
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September 17, 2014

This originally appeared in a Politico feature collecting responses to President Obama’s recently announced military plan against ISIS.

It’s strange to think of it now, but when Congress authorized President George W. Bush to use military force in the wake of the Sept. 11, 2001, terrorist attacks, the authorization was meant to be a limited one. The Bush administration wanted a more sweeping resolution—one that would allow the use of military force against any group, anywhere, that the president believed was planning terrorist attacks against the United States. But some in Congress believed it would be reckless to give the executive branch such boundless authority, and the language that Congress ultimately settled on was narrower: It authorized the use of military force only against groups connected in some way to the 9/11 attacks.

As it’s turned out, the language of the 2001 resolution hasn’t actually been very limiting. Quite the opposite. The government’s lawyers cited Congress’s 2001 resolution to justify dragnet surveillance programs. They cited it to justify the imprisonment without charge or trial of an American citizen seized at Chicago’s O’Hare airport. They cited it to justify the torture of prisoners in CIA black sites and the targeted killing of an American citizen in Yemen. They cited it to justify the use of military force in Afghanistan, Pakistan and Somalia, and now they are citing it to justify a new war in Iraq and Syria. The use-of-force authorization has turned out to be as broad as the government’s lawyers have been creative.

At least as troubling as what the executive branch is doing, though, is what Congress and the courts are not doing. In theory, Congress decides when the country goes to war, and against whom. In theory, the courts ensure that the president doesn’t exceed the authority that Congress and the Constitution have given him. But in reality, Congress and the courts have abdicated their responsibilities. Unless that changes, the only real limits on the executive’s authority to wage war will be the limits that the president and his lawyers decide, in their discretion, to recognize.

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