[Editor’s Note: Nathalie Weizmann, an Associate Research Scholar and Senior Director of the Counterterrorism and Human Rights Project at Columbia Law School’s Human Rights Institute, attended yesterday’s Senate Foreign Relationship Committee Hearing on the future of the AUMF.  Today, she writes in summarizing some of the key developments and questions from the hearing.  Stay tuned to Just Security tomorrow for post-hearing commentary from our own Harold Koh.] 

In his National Defense University (NDU) speech last May, President Obama pledged to “engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.” The President looked forward to “engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”

In an effort to engage in dialogue, the Senate Foreign Relations Committee (SFRC) held a public hearing yesterday entitled “Authorization for Use of Military Force After Iraq and Afghanistan.” Senator Menendez opened the hearing with the following questions: Is the 2001 AUMF broken, obsolete, or inadequate in light of threats today and in the future? If we amend it, what will it look like, and how are we to determine which threats to pursue in order to be secure? He also asked what were the prospects of repealing the 2002 Iraq AUMF.

The General Counsel for the Department of Defense (DoD), Stephen Preston, and the Principal Deputy Legal Adviser of the Department of State, Mary McLeod, testified on a government panel. Former U.S. Attorney General Michael Mukasey and Former State Department Legal Adviser Harold Koh testified on a second panel. The ensuing discussion focused mainly on the relevance of the 2001 AUMF in light of other domestic and international legal authority to use military force, the role of Congress in refining the AUMF and authorizing the use of force for self-defense or other purposes, and whether any additional terrorist groups would be covered by the AUMF or require some other authority for the US to take military action against them. The U.S. government has not yet elaborated any position on whether or how the 2001 AUMF should be refined or repealed. However, the government does consider that the 2002 Iraq AUMF is now ripe for repeal.

As the first witness, Mary McLeod recalled that the law of war will continue to be the legal framework for U.S. military actions in the armed conflict against al-Qaeda, the Taliban, and associated forces. A future legal framework should be guided by the following principles: i) any domestic authority for the use of military force should reflect the President’s direction that we must move America off a permanent wartime footing; ii) any use of military force or detention operations must be consistent with international law; ii) the U.S. must continue to enhance its cooperation with partner countries to take law enforcement or other forms of action to counter terrorist threats; iv) any future legislation should lift any remaining restrictions on the President’s authority to transfer detainees held under the law of war; v) the President’s authority to defend the country must remain part of any future framework.

Stephen Preston explained that the DoD relies on the AUMF in three contexts: i) ongoing military operations in Afghanistan, ii) ongoing military operations against al-Qaeda and associated forces outside the U.S. and Afghanistan, and iii) associated detention operations in Afghanistan and Guantanamo. Beyond 2014, the U.S. would seek to retain a small military presence in Afghanistan to provide support to train, advise and assist the Afghan National Security Forces under a NATO framework, and provide capability to disrupt terrorist activity in the region. For operations outside the U.S. and Afghanistan, the President’s May 23 Policy Guidance governs the use of force or capture operations against terrorist targets. Such action has been carried out in Yemen against members of al-Qaeda in the Arabian Peninsula (AQAP) and in other countries such as Somalia and Libya, against persons who are part of al-Qaeda. The DoD leaves open the possibility that additional groups may subsequently be identified as “associated forces” for the purposes of the AUMF.

Harold Koh proposed that counterterrorism policy should include the following three elements of the President’s NDU proposal: i) ending the war with al-Qaeda and its co-belligerents, ii) repealing the 2001 AUMF, and iii) prior to its repeal, narrowing its mandate. In response to Senator Menendez’s question about the continued relevance of the AUMF, Koh proposed a “belt and suspenders” approach: the AUMF and the President’s authority to resort to force under Article II of the Constitution were the belt and suspenders respectively. In a scenario in which al-Qaeda were defeated on the ground but all threats had not ended, the President’s inherent authority to use force in self-defence would remain. Similarly, if the facts on the ground were to show that traditional detention tools could be used, then there would no longer be a need for additional, statutory detention authority. When the situation on the ground permits, it will be possible to repeal the AUMF (i.e. get rid of the belt) without leaving legal gaps in the inherent authority to target or detain. Koh also proposed setting the stage for eventual AUMF repeal by narrowing the legislation grant of authority through the inclusion of a sunset clause to allow both elected branches to decide whether and when to use force against al-Qaeda and associated forces; codification of more stringent transparency and reporting requirements to Congress; addition of public reporting requirements; and the possible implementation of some form of review mechanism to oversee targeting decisions.

Michael Mukasey believed the AUMF to be obsolete and inadequate. In his view, working out who is or isn’t an associated force of al-Qaeda requires somersaults. Instead, the AUMF could include a list of non state armed groups and a consultative process could be carried out to include groups that are pursuing the same goal. Congress would have ongoing involvement in this process. In addition, the AUMF should say explicitly in which circumstances a person can be detained.

During the question period that followed each panel, a number of legal and political issues were explored. Below are some of the main ones:

Adequacy of the 2001 AUMF and the role of other domestic authority to use force or detain

In addition to his opening question on the adequacy of the 2001 AUMF, Senator Menendez asked repeatedly whether the AUMF gave the President any authority that he didn’t already possess. Preston said the 2001 AUMF was adequate to prosecute the armed conflict against al-Qaeda, the Taliban and associated forces. In cases where the AUMF does not apply, the President has authority, under the U.S. Constitution, to use military force as needed to defend the nation against armed attacks and imminent threats of armed attack. Preston added that there could be some implications for ongoing operations if the AUMF were repealed, for example on the authority to continue holding detainees, continued presence in Afghanistan, or certain counterterrorism operations outside the US and Afghanistan. On the authority to detain, Koh added other forms of detention authority may be available: criminal detention, immigration detention, or detention authorized under new legislation. However, both Preston and McLeod added that, in sustained military engagements, the government worked best when both the executive branch and Congress worked together.

Are there terrorist groups that 2001 AUMF does not authorize targeting?

Preston said he was not aware of a foreign terrorist group that the President lacked the authority to defend against simply because it was not considered an “associated force” under the AUMF. Even if a group were not covered by the AUMF, the President would have the authority to protect against the threat that it poses. In addition, there are groups like AQAP that did not exist in September 2001 that today are covered by the AUMF. As for other groups such as ISIS in Syria, the Administration would have to determine which legal authority is required to target them. If an imminent threat were found to exist, Article 2 of the Constitution would allow the use of force in self defense.

Role of Congress

According to Koh, Congress has a role to play in how much authority it wants to give the President. One area proposed for congressional input was in codifying the meaning of “self defense.” Senator Corker added that the meaning of “imminent threat” could be teased out. Senator Murphy pointed out the “twin struggles” that are the authority Congress grants to the President and the role Congress plays to oversee that authority. There is some concern that without an AUMF, the determination of what is an “imminent threat” would not be openly debated. A congressional role would ensure more open and robust debate and oversight on the specifics of the authority granted under Article 2 of the Constitution. Koh explained that framework legislation is typically adopted to circumscribe authority under the Constitution and clarify legal questions.

The SFRC also asked whether congressional approval was required for the use of force in contexts in which self-defence is not at stake (for instance in the military intervention in Libya and anticipated intervention in Syria). McLeod answered that the President had the authority to act without congressional authorization, although he had consulted congress on actions in Libya and sought authorization on Syria.