In addition, he inserted language aimed at curtailing the Act’s expansiveness, including a requirement that the enemies to whom it could be applied be specifically named. He suggested three: the original Al Qaeda; the Islamic State Khorasan, based in Afghanistan and known as IS-K; and the Islamic State in Iraq and Syria, or ISIS. Moreover, his bill called for an annual reconsideration of those enemies and added provisions designed to end the president’s right to authorize the AUMF’s use for new groups by claiming they were just extensions of, or forces associated with, the already named groups. Furthermore, his bill prohibited its use against any unnamed enemy, “whether or not the entity is involved in an armed conflict against a force of a United States ally or partner or is an affiliate, associated force, or successor entity of an entity described in such subsection.”

To further constrain the broadness of that 2001 authorization, Meeks included a sunset clause at the end of four years unless it was reauthorized by Congress.

In a world where wars have broken out in Ukraine and now the Middle East, and where additional hostilities are simmering when it comes to the United States, Iran, China, and Russia, such language would ensure that a separate congressional declaration of war would have to be approved for any enemy the US decided to attack.

In these many ways, the new version of the AUMF would rein in the aberration of those war powers that came into being in the aftermath of 9/11.

And yet the time to redesign the authority of presidential war powers, as created more than 22 years ago by the war on terror, has still not arrived. Meeks’s bill, like Rand Paul’s, gained remarkably little traction. Likewise, a bill from those relatively few congressional representatives calling for a full repeal of that AUMF rather than a replacement of it failed to make it to a vote. Surveillance

In addition to indefinite detention at Guantánamo and the authorization of endless, expansive war-making, ever more expansive intelligence collection, at home as well as abroad, has been a foundational pillar of the war on terror—and, like the AUMF, bringing it under some control has been mired in debate and controversy in recent months. In 2023, some members of Congress tried to put limits on part of a controversial law, Section 702 of the Foreign Intelligence Surveillance Amendments Act, passed in the summer of 2008 in the waning months of George W. Bush’s presidency. It authorized the collection and sharing of foreign intelligence for the purpose of deterring national security threats.

The problem was not the stated purpose of Section 702—to acquire information on foreigners abroad who might pose a threat to the United States—but the domestic uses to which it’s been put. The act allows foreigners abroad to be surveilled without a warrant. But since its inception, it’s also been used for warrantless investigations of Americans whose communications have been caught up in sweeping searches of the communications of foreigners—investigations that have become known as “back-door searches.”

Constitutional scholars and civil liberties advocates have fought against Section 702 from its inception, arguing that such searches violate the Fourth Amendment’s guarantee against unreasonable searches and seizures without a warrant based on probable cause of criminal activity. As Elizabeth Gotein of the Brennan Center for Justice explains, “Section 702 lets the government collect the communications of non-Americans located abroad without a warrant. But because Americans talk to people outside the country, the surveillance inevitably sweeps in our private phone calls, emails, and text messages, too—information that the government would normally need a warrant to access.”

In addition, experts note that, over time, the broad authority to collect the communications of Americans has been abused in alarming ways by the authorities. Gotein points out that 702-based warrantless searches have scrutinized the “communications of Black Lives Matter protesters, members of Congress, a local political party, a state court judge, journalists, and in one case, more than 19,000 contributors to a congressional campaign.” For their part, intelligence officials seeking a continuation of Section 702 point out that recent reforms have led to more responsible use of the authority.

Now, for the third time since its passage, Section 702 is up for renewal. December 31, 2023, was the legal deadline for a vote on it. Unlike the two prior times, however, the renewal date came and went without a vote. Instead, substantial opposition by legal experts and others led to several competing bills calling for Section 702’s reform.

One of the proposed bills, the Government Surveillance Reform Act, introduced by Democratic Senator Ron Wyden of Oregon and Republican Senator Mike Lee of Utah, as well as representatives Warren Davidson (R-Ohio) and Zoe Lofgren (D-Calif.) in the House, proposed that a warrant requirement be added to the search requirements when looking at the location data of Americans, web browsing and search records, vehicle data, and the like. In Lee’s version, any queries about the communications collected in a 702 search would, in accordance with the Fourth Amendment, require a warrant for material involving Americans. The new bill would amount, in Gotein’s words, to closing “the backdoor search loophole.”

The Biden administration has, however, taken a notably aggressive stance against changes to the law, especially when it comes to the introduction of the warrant requirement. Numerous high-ranking officials have spoken out publicly, insisting that the warrant requirement would imperil their ability to keep the nation safe. In his written testimony before Congress, FBI Director Chris Wray insisted that it was “an essential tool” in the counterterrorism toolbox. In fact, he told Congress, it was potentially “the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans.” Andrew McCabe, acting director of the FBI after Donald Trump fired Director Jim Comey, put it even more starkly in a podcast devoted to the issue, labeling Section 702 “arguably the most significant national security tool in the intelligence community.” He then insisted that the requirement for a warrant was “completely unworkable.”

So fraught was the congressional loggerhead over Section 702 that the deadline for a decision proved unworkable. Instead, Congress inserted an extension to mid-April 2024 in this year’s defense spending bill, signed into law by President Biden three days before Christmas.

It’s likely that, as with the 2001 AUMF, the attempt to change Section 702 will fail. Powers once given, it seems, only prove ever harder to relinquish and, all too sadly, the overreach engendered by the war on terror has by now become an accepted part of the American (and congressional) way of life. Guantánamo

And then there’s the most glaring symbol of the never-ending, often extralegal legacy of the war on terror, the continued existence of that grim prison at Guantánamo Bay, Cuba. Twenty-two years ago, the Bush administration set up that offshore detention facility for war-on-terror detainees, placing it beyond the reach of military, federal, or international law. Since then, on numerous occasions, new protections for the rights of prisoners there have been put into place, but none of them have addressed one fundamental wrong—namely, the decision that the federal court system was incapable of prosecuting those accused of engaging in terrorism against the United States, including those who conspired in the 9/11 attacks.

Despite candidate Biden’s assertion that, unlike Donald Trump, he would support the closure of Guantánamo, his appointment of a special representative to oversee the transfer of its prisoners to federal prisons, and the actual transfer of 10 detainees, substantial efforts to finally shut down the prison have been noticeably absent. Once a facility that held 780 men captured in the war on terror, it now holds 30 individuals, 16 of whom have been cleared for transfer elsewhere, pending appropriate security arrangements. Another 10 are scheduled for trial by military commissions but their trials are not expected to begin anytime soon.

Whether it’s an endlessly expansive authorization for eternally conducting war around the world, the redefinition of surveillance powers to include Americans under the guise of a foreign threat, or the seemingly lackadaisical acceptance of Guantánamo as an institution, there is certainly one lasting lesson from the war on terror. Once powers previously outlawed or at least restrained in the name of fair, just, and responsible laws and norms become codified and implemented, the road back to normalcy is tantamount to impossible.

Perhaps the best we can hope for is that wiser heads will prevail in the days to come. It is, however, a terrifyingly fragile approach, given the outlook for the 2024 election.