Trump Administration Says Its Broad Powers Under the 2001 AUMF Are Plenty

Just as Congress was showing signs that it might, after 16 years, start to rein in the nation’s growing list of post-9/11 wars, the Trump administration told Congress no thanks, we are happy with the overbroad authorities we’ve got.

In a letter to Chairman of the Senate Foreign Relations Committee, Bob Corker (R-TN), the State Department’s Bureau of Legislative Affairs wrote, “the Administration is not seeking revisions to the 2001 AUMF or additional authorizations to use force.” The letter was released just before Secretary of State Rex Tillerson and Secretary of Defense Jim Mattis were scheduled to testify behind closed doors on the administration’s views on authorizations for use of military force.

It is the most comprehensive public statement to date of the current administration’s views of its domestic and international legal bases for ongoing military operations against ISIS. (That said, the letter primarily provides the administration’s legal conclusions without any of the underlying analysis.) Significantly, the administration’s letter largely tracks the Obama administration’s legal theories. Domestically, the Trump administration claims, like the Obama administration, that the 2001 Authorization for Use of Military Force applies to ISIS. What is less clear from the letter’s wording is the extent to which the administration believes ISIS is an extension or offshoot of al Qaeda or is an “associated force” of al Qaeda, or the extent to which it believes that other domestic legal authorities—such as Article II of the Constitution or Title 50 covert action authorities—also provide domestic legal authority for the use of force against ISIS. The letter ambiguously states:

“The United States has sufficient legal authority to prosecute the campaign against al-Qa’ida and associated forces, including against the Islamic State of Iraq and Syria (ISIS). This legal authority includes the 2001 Authorization for the Use of Military Force (AUMF) which authorizes the use of military force against these groups.” (emphasis added)

Under international law, the Trump administration again stuck largely to the Obama administration’s position that the war with ISIS is lawful in the collective self-defense of Iraq and other, unnamed states, and the individual self-defense of the United States. The Trump administration’s letter states:

“As a matter of international law, the United States is using force in Syria against al-Qa’ida and associated forces, including ISIS, and is providing support to Syrian partners fighting ISIS, such as the Syrian Democratic Forces, in the collective self-defense of Iraq (and other States) and in U.S. national self-defense.”

The Obama administration’s last word on this is nearly identical:

“As a matter of international law, the United States is using force in Syria against ISIL and providing support to opposition groups fighting ISIL in the collective self-defense of Iraq (and other States) and in U.S. national self-defense.”

What’s different in this letter is the claim that both the domestic and legal bases cited also include the authority to use force against the Syrian government and pro-Assad forces to the extent such force is a necessary and proportionate measure “to defend U.S., Coalition, or partner forces engaged in the campaign against ISIS.” The significant extension here is two-fold: (1) the claimed authority to engage in hostilities against forces other than AQ and ISIS and their associated forces, including State armed forces like Syria and forces supporting them; and (2) the claimed authority to use force in defense of partner forces, presumably including non-state actors like the Syrian Democratic Forces. These claims raise a host of legal, policy, and national security issues—several of which are discussed in detail by Adil Haque here, Ryan Goodman here, and Steve Vladeck and Bobby Chesney here.

Of particular significance going forward is the impact of this letter on the AUMF debate in Congress. It’s clear from today’s letter that the administration prefers the status quo, which requires a nexus to the 9/11 attackers but otherwise has no time limits, no geographic limits, no congressional or public reporting requirements, and has been interpreted to allow the executive branch—not Congress—to make the decision to go to war with new terrorist groups as long as they meet the administration’s own definition of “associated forces” or offshoots of al Qaeda or the Taliban.  Senator Corker said that he plans to hold a hearing on the Kaine-Flake AUMF proposal regardless of the outcome of today’s closed hearing, but today’s development raises the question of whether Congress will finally assert its constitutional prerogatives over war or use the administration’s comfort with the status quo as justification for shirking its responsibility.

 

Photo Credit: Getty Images/Chip Somodevilla 

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Rita Siemion

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