LESSONS ENCOUNTERED

Rostow and Rishikof
from a congressional resolution authorizing the use of the “Armed Forces
against those responsible for the recent attacks against the United States and
its citizens.” 22 The United States treated the events as armed attacks, giving rise
to the right to use force in self-defense against the perpetrators and the government
of the territory from which they came—Afghanistan. 23
Having determined that al Qaeda, with the assistance or acquiescence of
Afghanistan, conducted the attacks, the President, independently of Congress,
could direct the Armed Forces into action against the known and suspected
perpetrators as a reasonable action given the absence of alternatives designed
to prevent a repetition and to bring the situation creating the right of self-defense
to an end. 24 The attacks so shocked the government and the country that
it was clear that Congress would stand with the President and would want to
be seen as doing so. The 2001 Authorization for Use of Military Force constituted
both a statement of solidarity and authorization. As Justice Robert H.
Jackson wrote in his concurring opinion in the Steel Seizure Case of 1952, the
President operates at the zenith of his powers when explicitly supported by
Congress. 25 Explicit does not mean by appropriations but by joint resolution. 26
The 2001 authorization put President George W. Bush in the strongest possible
legal (and political) position to confront the attackers.
The resolution authorized the President “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.” By its terms, this resolution fulfilled
the requirements of the 1973 War Powers Resolution. 27 Not only did the 2001
authorization cement the domestic authorization for U.S. military operations
in Afghanistan in 2001, it also was broad enough to allow military operations
against those who carried out or supported the September 11 attacks, including
“nations, organizations, or persons he determines . . . aided the terrorist
attacks” in order to prevent a repetition. 28 Both the Bush and Obama administrations
have argued that this resolution authorizes military operations, even
more than 14 years after September 11, against entities the President concludes
may have had a role in the 2001 attacks and to prevent a repetition of them.
The resolution’s language, they argued, also encompassed capture and inter-
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