America’s AUMF Problem: Tomorrow’s Senate Hearing and a New Proposal from Eliot Engel

Events over the last several weeks show that not only is the AUMF issue not going away, but that Congress continues to inch closer to agreement. This Tuesday, the Senate Foreign Relations Committee will hold a hearing on “Reviewing Congressional Authorizations for the Use of Military Force.” As readers well know, the executive branch continues to rely on the war authorization Congress passed a week after the 9/11 attacks. Less than a quarter of the current members of Congress were around to vote for that authorization. Yet it is being used—nearly 16 years later—as the legal basis for military operations against over half a dozen terrorist organizations in at least as many countries.

The 2001 AUMF explicitly authorized force against only those entities responsible for 9/11 and those harboring them, and only for the purpose of preventing future attacks against the United States by those same entities. But the lack of a critical sunset provision has enabled the executive branch to use the 2001 AUMF as authority for operations against groups like ISIS and al Shabaab that took no part in the 9/11 attacks, and is even stretching it to the point of flirting with the dangerous notion of a proxy war with Iran.

As a wide array of civil liberties, faith, and human rights organizations wrote to Chairman Bob Corker (R-Tenn.) and Ranking Member Ben Cardin (D-Md.) just this morning, this ongoing stretching of the 2001 AUMF raises a host of problems for the sustainability of U.S. counterterrorism operations, separation of powers, human rights, democratic accountability, congressional oversight, and the rule of law. Human Rights First also detailed these concerns in a Statement for the Record for tomorrow’s hearing. Even the Daily Show is talking about the ridiculousness of relying on the 2001 AUMF for bombing campaigns in seven different countries: 

Yet for years Congress has been unable to settle on a path forward for repealing or updating the 2001 authorization, or passing a new authorization for force against ISIS, despite several very vocal members of Congress repeatedly raising the issue. The scheduling of Tuesday’s hearing, however, signals renewed interest. Last month, Chairman Corker announced that he hoped his committee would take up the AUMF during this work period. Corker’s statements reflect a significant shift from a year and a half ago, when he expressed a willingness to take up the issue only if and when the Obama administration came to Congress asking for additional authorities.

Senator Corker’s prior reluctance was reportedly based on concerns that the committee would not be able to reach agreement on the terms of any new war authorization for fighting ISIS. That concern appears to have abated some in light of the new bipartisan AUMF proposal by Senators Jeff Flake (R-Ariz.) and Tim Kaine (D-Va.) that was so whole-heartedly endorsed at Lawfare (and praised by Human Rights First as well). Corker described the Flake-Kaine AUMF proposal as “the best of the U.S. Senate working in a bipartisan way to come up with something that may in fact work.”

Senators Kaine and Flake are not alone in their effort. Those following the issue know that Congressman Schiff reintroduced his widely-endorsed consolidated AUMF early last month. Lawfare’s Bobby Chesney provided detailed analysis of Congressman Adam Schiff’s (D-Calif) proposal here and many others commented when its nearly identical precursor was introduced last year. Two freshman Republican lawmakers, Congressman Jim Banks (R-IN. )and Senator Todd Young (R-IN), also introduced companion proposals earlier this spring, which Senator Young explains here.

And earlier today, Just Security released a discussion draft of a new AUMF proposal by  Congressman Eliot Engel (D-NY), the Ranking Member of the House Foreign Affairs Committee. Congressman Engel’s new proposal would:

  • Amend the 2001 AUMF to add an ISIS-specific authorization. This approach of amending the existing authorization allows members who oppose reauthorizing the 2001 AUMF but support authorizing force against ISIS to cast their vote without necessarily agreeing to reup the 2001 wars. This approach also provides an opportunity for adding much needed reporting requirements, a sunset, and an associated forces definition to the 2001 authorization.
  • Authorize force against associated forces of ISIS but not successor entities. The authorization then defines “associated forces,” with respect to al-Qaeda, the Taliban, or ISIL, as “an organized, armed group that has and continues to be engaged in active hostilities against the United States alongside al-Qaeda, the Taliban, or ISIL, respectively, as a party to an ongoing armed conflict with the United States.”
  • Not authorize ground troops for fighting ISIS other than for specifically listed purposes. Ground troops may be introduced only if the President finds it is in vital national security interest of the U.S. and meets certain reporting requirements AND Congress then passes a joint resolution authorizing ground troops. The legislation includes expedited procedures for voting on such a resolution.
  • Require detailed reporting, including specifying that certain information must be reported in unclassified form.
  • Require reauthorization of both the ISIS authority and 2001 authorization after 3 years.
  • Clarify that the new ISIS authority is the sole source of statutory authority for using military force against ISIS to prevent the executive branch from evading the authorization’s requirements by relying on the 2001 authorization.
  • Repeal 2002 Iraq AUMF that authorized force against the Saddam Hussein regime.

In a newly released AUMF Issue Brief, Human Rights First provides more detailed analysis of this new proposal and other leading AUMF proposals. The Issue Brief includes a detailed chart showing how each proposal stacks up against the consensus recommendations of national security and legal experts from across the political spectrumCongressman Engel’s proposal comes closest to satisfying these recommendations.

Despite all of this activity, many on and off the hill remain skeptical that Congress really intends to do anything about properly authorizing or right-sizing America’s wars. Tuesday’s hearing may simply reflect a warning from the Senate Foreign Relations Committee to the Senate Armed Services Committee that it intends to fight for its jurisdiction over war authorizations. The hearing may also be aimed at pushing the Trump administration to finally produce a strategy for Afghanistan, Syria, and Iraq. Another possible motivation behind Tuesday’s hearing is that Congress is anticipating that the Trump administration plans to seek additional war authorities from Congress.

Either way, as former general counsel of the CIA and Department of Defense Steven Preston recently noted, the 2001 AUMF is not “infinitely elastic.” Congress is going to have to face America’s AUMF problem at some point.

Image: Mark Wilson/Getty

 

About the Author(s)

Rita Siemion

International Legal Counsel at Human Rights First Follow her on Twitter (@ritasiemion).