Principles for a 2021 Authorization for Use of Military Force

Editor’s note: This article was originally published on Jan. 21, 2021; Just Security is republishing it on March 5, 2021 in light of the White House statement that President Biden wants to “ensure that the authorizations for the use of military force currently on the books are replaced with a narrow and specific framework.”

 

The Biden-Harris administration has inherited a “forever war” — in reality several different conflicts against distinct enemies — purportedly authorized by the nearly twenty-year old 2001 Authorization for Use of Military Force (2001 AUMF). As Secretary of State nominee Tony Blinken said in his confirmation hearing before the Senate Foreign Relations Committee, it is “long past time” for the executive branch to work with Congress on revisiting existing force authorizations. We agree. But as Blinken also made clear, the politics of getting to yes will be difficult, as past attempts to repeal or replace the 2001 AUMF have made plain. 

Absent congressional action, the executive branch could independently develop a counterterrorism strategy that relies less on the 2001 and 2002 AUMFs. That approach could include commitments to cease reliance on the 2001 AUMF beyond any ongoing operations (and to disclaim reliance on the most extreme interpretations advanced in recent years), to cease reliance on the 2002 AUMF altogether, to avoid overreliance on military force, and to use Article II authority for limited operations only when absolutely necessary to protect against an armed attack or imminent threat of armed attack against the United States. But those steps are not a substitute for repealing and replacing these authorizations — among other things because they leave it to the executive branch to interpret the legal boundaries of its authority to use force. Given this kind of latitude, the Executive is prone at some point to use it. Perhaps the most egregious contemporary example concerns the 2002 AUMF, originally passed to authorize force against Saddam Hussein’s Iraq, which was taken off the shelf over a decade later as part of the purported domestic legal basis for the use of force against ISIL, and even several years after that for strikes against Iran. In short, force authorizations that should be considered a dead letter can end up functioning more as a loaded weapon. 

The political realities and difficult policy decisions involved in truly bringing the “endless war” to a close make it likely that Congress and the executive branch will instead try again to work together to “right-size” U.S. involvement in the sprawling conflicts authorized by the 2001 and 2002 AUMFs rather than simply wrapping them up. If those operations continue, they should be authorized under an up-to-date statute. But, as one of us wrote previously, replacing the 2001 and 2002 AUMFs with a new force authorization also involves enormous risk: “if not tailored appropriately, Congress risks writing an even broader blank check for the President than the 2001 AUMF turned out to be — and hard-wiring a ‘global war on terror’ that has no reasonable prospect of ending.”

If Congress and the executive branch work to craft a new AUMF, the effort should be guided by the following principles that aim to guard against uses Congress did not intend, create temporal boundaries around the conflict, provide transparency to Congress and the American people, and ensure the United States abides by its legal obligations and lives up to its core values:

1. Authorize force against a specific group (or groups) for specific objectives

Any new AUMF must authorize force only against specific, identified, organized armed groups currently engaged in hostilities against the United States. It should also specify the threat to the United States that necessitates the use of military force, the mission objectives that force is authorized to achieve, and the parameters for when the use of force is no longer necessary or appropriate. 

Fundamentally, Congress should not simply bless a list of groups against which the 2001 AUMF has been interpreted to apply in the past. Congress should first take a hard look at whether the use of military force is the “only or best means of effectively and sustainably addressing a serious threat to the United States… or whether a combination of other tools of U.S. power… would be sufficient or more effective” in doing so. The interbranch dialogue fostered by congressional oversight of the matter would itself be productive.

2. Explicitly preclude use of force against countries or organized armed groups other than those specifically named

Any new AUMF must be clear that force is not authorized against any nations, armed groups, or individuals other than those explicitly named in the statute, including any purported “associated forces,” “successor forces,” “co-belligerents,” “affiliates,” “splinter” groups, or other “related” groups or nations. (If an identified  group merely changes its name but remains otherwise the same group, it would continue to be covered.)  This would also be intended to prevent a conflict from spilling into new regions or countries where related groups operate, absent explicit congressional authorization.  

Crucially, there should be no expedited procedures for expanding the authorization over time. Congress should affirmatively vote – using normal procedures – to authorize new armed conflicts or expand existing ones.

3. Sunset after no more than 3 years

At least every other Congress should vote on whether we should continue to be at war, and against whom. Congress may wish to include a reasonable drawdown period once the authorization ends to wind up any ongoing operations. Of course, Congress may vote using normal procedures to reauthorize the use of military force at any point in time.

4. Ending conflicts, not expanding them

A new AUMF should specify that the use of force is permitted only if — and so long as — it is the only feasible option to protect against ongoing hostilities or a grave and present threat of armed attack against the United States. 

To enforce this limitation, any new AUMF should require a joint certification by the Secretaries of Defense and State and the Director of National Intelligence every 6 months as to whether the specific, named group against which force is authorized is still conducting hostilities against the United States, and whether it continues to present a grave and present threat of conducting a substantial armed attack against the United States. A new AUMF should automatically sunset within 6 months of a failure to make such a certification (or at the 3-year sunset already included, whichever is earlier). This is a variation on a smart proposal in section five of Senator Merkley’s 2018 proposed AUMF to sunset the authorization “upon cessation of [the] threat.”

5. Require exercise of the authority be in compliance with all relevant international law

Any new AUMF should require that the authority be used only in a manner that is consistent with all applicable international law, including the law of armed conflict, jus ad bellum, and international human rights law. It should specify that there shall be no return to torture or cruel, inhuman, degrading treatment or punishment. And it should specify that it authorizes only actions that respect the sovereignty of other nations.

6. Transparency and reporting

Any new AUMF should contain reporting requirements that keep Congress and the public currently informed (and at minimum every two months) on the following subjects: 

  • where and how many U.S. personnel are deployed pursuant to the authorization; 
  • where and what level of hostilities are taking place pursuant to the authorization, including by any partner forces; 
  • the status of operations vis-a-vis mission objectives; 
  • the estimated scope and duration of future operations in order to meet mission objectives; 
  • civilian and combatant casualties associated with the authorized operations (including by any partner forces); 
  • the cost of the operations and any other resources involved in supporting them; 
  • compliance with law of armed conflict and, as applicable, international human rights law obligations of the United States and any partner forces; 
  • any significant legal analyses regarding the scope and legal authority for uses of force pursuant to the authorization; regarding the definition of civilians, enemy armed groups, membership in enemy armed groups, lawful military targets (including individuals and objects), and regarding U.S. legal responsibility for support to partner forces;
  • accountability for any violations of U.S. or international law in the course of operations conducted pursuant to the authorization, including use of the UCMJ.

The statute should require that the only portion of the reporting that may be classified is the exact locations of U.S. and partner troops if required for force protection purposes. A classified annex with information beyond that required in the statute may be submitted during any 2-month reporting period. 

The AUMF also should ensure the State Department and Defense Department are jointly responsible for preparing and presenting these reports to Congress.

7. Repeal the 2001 AUMF and the 2002 and 1991 AUMFs Regarding Iraq

To ensure against future abuses of authorizations already on the books, all existing force authorizations must be repealed. 

Photo:  Speaker of the House Nancy Pelosi (D-CA) sits with U.S. President-elect Joe Biden during a meeting that included Vice President-elect Kamala Harris and Senate Democratic Leader Chuck Schumer (D-NY) at the Queen Theater on November 20, 2020 in Wilmington, Delaware.  (Photo by Joe Raedle/Getty Images)

 

About the Author(s)

Tess Bridgeman

Co-Editor-in-Chief of Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. Follow her on Twitter (@bridgewriter).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Stephen Pomper

Stephen Pomper is U.S. Program Director for International Crisis Group, Served in the Obama Administration as the National Security Council's Senior Director for Multilateral Affairs and Human Rights. Currently Non-Resident Senior Fellow, Reiss Center on Law and Security at NYU School of Law. You can follow him on Twitter (@StephenPomper).

Steve Vladeck

Executive Editor of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).