Ending Infinite War: Rethinking Congressional War Authorization in The Age of Drones
Graham Harwood 
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With the National Defense Authorization act coming up for a vote, the war in Iraq may finally be over. The war in Iraq is technically still ongoing, as is the war in Afghanistan. We may have pulled out the troops, but the Authorization of Use of Military Force (AUMF) for the war on terror continues, allowing congress to abdicate responsibility for war-making and giving the executive branch all but unlimited authority to perform military actions across a wide range of regions and against a wide range of adversaries. The advent of Unmanned Aerial Vehicles (UAVs) and their rise as a weapon of war has further enabled the executive branch to strike globally without requiring further input from Congress. While UAVs represent only a technological improvement in weapons platforms, their use highlights the removal of congressional approval from military action since the September 11th terrorist attacks. Discussions of the ethics of UAVs obscure the larger issue at play. Laws governing executive authority for waging war, focused on boots on the ground with conventional air support, failed to see a future of UAVs where the executive can wield a supra-national force for global lethal action under the auspices of a far past stale AUMF.
Article 2 Section 8 of the Constitution (“U.S. Const. art. II, § 8.”) vests Congress with the sole power to declare war. While the executive branch exercised significant latitude to use force without congressional approval, Congress endeavored to limit the executive branch’s unilateral war-waging power in the wake of the Vietnam War with the War Powers Resolution of 1973 (50 USC Ch. 33.) This legislation limited all military engagement to 60 days with an additional 30 days to withdraw forces without congressional approval and without either a declaration of war or the authorization of military force. Although Congress has grumbled at various times about the executive branch stretching the statutory boundaries of the law, notably in Kosovo in the 1990s, no one has brought legal action against the executive.
In 2001, Congress passed an AUMF against those responsible for the September 11th attacks. From 2001 to 2013, the executive branch authorized military action in 10 countries across two continents under this AUMF (Woody 2017). As of November 2021, only 56 of the 435 members of the house held their seats in 2001 and were thus eligible to vote on this AUMF. The corresponding count in the senate is 16 out of 100. Any UAVs deployed by the Department of Defense (DoD) represent military action that an increasingly small proportion of Congress voted to authorize. As such, the executive branch continues to order lethal action that neither a majority of Congress, nor the voting public have had the chance to vote on. While this action does not violate the letter of the War Powers Resolution, one can hardly argue that it does not violate the spirit of the law. The constitutional basis for DoD action relies on approval from congress. The War Powers Resolution of 1973 (50 USC Ch. 33) further codified this approval into specific steps required by Congress. Instead, the executive branch has used the 2001 AUMF as a blank check for a variety of military actions reaching far past its original goals.
UAVs exacerbate this problem because their low cost and increased range expand the battlefield. Historically, the armed forces have used aircraft to support surface operations. By contrast, UAVs can strike targets without a ground-based observer, and this independence blurs the lines of the battlefield thus blurring the line between an extrajudicial killing and an act of war. As such the new technology exposes the shortcomings of the War Powers Resolution: too broad of an AUMF without a sunset date essentially nullifies the constitutional requirement for congressional approval of military force. UAVs enable a global conception of the battlefield and Congress must retake control to limit executive overreach.
The War Powers Act needs an update to move strikes back onto constitutionally solid footing. Provisions should include requirements that all AUMFs have a sunset period and reauthorization as well as a defined and measurable policy objective. These revisions would limit the scope and define boundaries of activity that the executive branch could otherwise use UAVs to circumvent. The concept of a sunset poses concerns that an up or down vote on every conflict will be used as a political football in much the same way the debt ceiling already is. The annual defense authorization bill acts similarly, as many members of Congress attempt to enforce various political objectives through its passage. Nevertheless, the goal of the sunset provision is to put politicians on the record as approving or disapproving military action and despite the potential of political skullduggery, a sunset provision would put Congress squarely in the position of approving continued military action. As a result, this vote would force a periodic national discussion of the armed conflict and corresponding policy. A geographical limitation would more obviously limit the creep of scope of the theatre of war, but this would create essentially safe zones for enemy combatants to enter. Thus, solely locational provisions would be too limiting but requiring a specific policy objective could prevent excessive mission creep. The updated policy would reestablish congressional control over war powers in the face of UAVs as a disruptive technology.
When President Biden removed troops from Afghanistan, pursuant to the Doha agreement negotiated by the Trump Administration, many Americans felt that the forever wars had finally ended (Department of State 2020.) The troops may have returned to other bases and locations, but the remaining legal authorization for the wars still means that the executive branch can continue to exert US Military power via UAVs all over the world. Congress passed the War Powers Resolution to avoid just this situation. UAVs represent simply the next iteration of weapons and thus need to fall under the existing legal strictures. The War Powers Resolution thus needs an update to ensure that Congress must approve military action in order to ensure constitutionality and the rule of law, regardless of the weapons system used.
Christopher Woody, “Congress May Repeal the Post-9/11 Act the US Military Used to Justify the Fight against ISIS,” Business Insider, June 29, 2017, https://www.businessinsider.com/a-bill-to-repeal-the-aumf-just-passed-2017-6.
“50 USC Ch. 33: WAR POWERS RESOLUTION.” 50 USC Ch. 33: War powers resolution. Accessed December 21, 2021. https://uscode.house.gov/view.xhtml?path=%2Fprelim%40title50%2Fchapter33&edition=prelim.
S. Const. art. 2. sec. 3. cl. 1.
“Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan Which Is Not Recognized by the United States as a State and Is Known as the Taliban and the United States of America.” United States Department of State. Accessed December 21, 2021. https://www.state.gov/wp-content/uploads/2020/02/Agreement-For-Bringing-Peace-to-Afghanistan-02.29.20.pdf.
