On Tuesday, Aug. 3, the Senate Foreign Relations Committee (SFRC) is scheduled to hold a public hearing entitled, “Authorizations of Use of Force: Administration Perspectives.” The SFRC is the committee responsible for drafting and ostensibly also repealing Authorizations for the Use of Military Force (AUMFs). Tuesday’s hearing comes the day before a markup by the SFRC of legislation to repeal the outdated 1991 and 2002 AUMFs. The Biden administration supports repeal of these AUMFs for reasons that largely track with common sense; both govern wars that have long been over.
Indeed, it is hard to imagine that much needs to be said about reasons to repeal the 1991 AUMF, which authorized the first Gulf War. While members are less at ease with repeal of the 2002 AUMF, which was passed to authorize President George W. Bush’s invasion of Saddam Hussein’s Iraq, the case for repeal has been well covered and it’s not clear how much additional light a hearing will shed. But as Tess Bridgeman and I have each written recently, a conversation is sorely needed on the 2001 AUMF—the authorization that twenty years ago launched the invasion of Afghanistan and still undergirds the war on terror—and, more specifically, about what, if anything, should replace it.
The Biden administration’s views on the 2001 AUMF have not been fully presented to the public. One hopes senior policy and legal officials in the Biden administration take this opportunity to make some of the difficult decisions necessary to allow the administration witnesses to begin the sorely needed discussion on the 2001 AUMF and its future. The three witnesses – seasoned State Department veterans Acting Legal Adviser Richard Visek and Deputy Secretary Wendy Sherman as well as the recently confirmed General Counsel of the Department of Defense Caroline Krass – are very well equipped to engage that level of serious discussion.
For their part, Senators should seek a discussion of how the executive branch currently interprets and relies on the 2001 AUMF, where and against whom they believe it enables the use of force (pressing them, for example, on the administration’s invocation of the statute as authorizing recent airstrikes in Somalia), and where the administration stands on various proposed reforms to the 2001 AUMF that have been widely discussed. (Some of these issues were previously examined here and here.) To get at these issues, what follows are suggested questions that members of the SFRC might pose to the administration.
2001 AUMF Reform
Background. The 2001 AUMF is the principal statutory authority for U.S. military counterterrorism operations and provides in pertinent part
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Notably, the 2001 AUMF lacks an end date or any geographic limits. As interpreted by the executive branch, the 2001 AUMF delegates to the president the decision where and against whom to use military force. In practice, it has been interpreted by the executive branch to authorize operations from Cuba (detention) to Niger (lethal force) and against groups that include “associated forces” that have specified links to al Qaeda but did not participate in or support the 2001 attacks at the time. As of 2017, the Executive Branch stated:
The 2001 AUMF provides statutory authority for ongoing U.S. military operations against the following individuals and groups: al-Qa’ida; the Taliban; certain other terrorist or insurgent groups affiliated with al-Qa’ida or the Taliban in Afghanistan; al-Qa’ida in the Arabian Peninsula; al-Shabaab; individuals in Libya who are part of al-Qa’ida; al-Qa’ida in Syria; and ISIS.
Although candidate Biden committed to “end forever wars in Afghanistan and the Middle East,” his administration has appeared to carve out at least some ongoing counterterrorism operations from that commitment, and sees the 2001 AUMF as necessary to underpin at least some of those activities. Regarding reform of the 2001 AUMF, General Milley has said in June testimony before the House Armed Services Committee, the “2001 AUMF is the one we need to hang on to…it is the critical one for us to continue operations.” Still, the administration has left the door open to reform of the 2001 AUMF saying it would work with Congress to “ensure that outdated authorizations for the use of military force are replaced with a narrow and specific framework.”
You have spoken about replacing outdated authorizations with a “narrow and specific framework.” What are the “narrow” and “specific” features of a replacement for the 2001 AUMF that the Biden administration would support? Would the statute identify the specific enemy groups, countries of operation, and missions for which it is authorizing the use of force? Would it include an end date at which point the executive branch would be required to seek reauthorization?
Scope of 2001 AUMF
Background: The full list of groups and individuals that the Executive Branch considers covered by the 2001 AUMF is currently secret. In its April 2021 Report on the Legal and Policy Frameworks for the United States’ Use of Military Force and Related National Security Operations, the Biden Administration states that information regarding the application of the 2001 AUMF to specific groups is in a classified annex. This means that the American people do not have access to information about the wars being fought in their name under the 2001 AUMF, and Congress cannot have an open discussion about whether the statute is being appropriately applied. Creating the conditions for a robust conversation about the pros and cons of continued U.S. direct action is essential for ensuring that the costs and risks of these operations are appropriately scrutinized, and that members of both political branches are accountable to the public for the decisions they are taking, or acquiescing in.
Do you believe it was the intent of Congress that the 2001 AUMF authorize the fighting of secret wars? If not, what is the justification for keeping secret the list of groups against whom the U.S. is fighting under the auspices of that legislation? Can you provide this committee an exhaustive public list of all groups against whom you believe force may currently be authorized pursuant to the 2001 AUMF? For greater transparency, can you also provide a similar list of all countries where force has been used pursuant to the 2001 AUMF since it was enacted 20 years ago?
Self-Defense and the AUMF
Background. The Trump administration took the position that the 2001 AUMF provided authority not only to directly target groups such as al Qa’ida and ISIS, but also to use force in what might be termed “ancillary self-defense” against groups not otherwise covered by the AUMF. For example, in 2017 when U.S. or partner forces conducting counter-ISIS operations in Syria came under attack by pro-government forces, the Trump administration cited the 2001 AUMF as authority to use military force in response to those third parties. From the Trump administration’s perspective, one advantage of relying upon the statutory authority of the 2001 AUMF rather than Article II of the Constitution was that by asserting these activities to be part of an already-authorized conflict this legal theory allowed the executive branch to avoid both the reporting requirements of the War Power Resolution (WPR) and the requirement to terminate hostilities. By contrast, if the administration conceded that it was engaged in hostilities undertaken solely on the basis of Article II, it would have been required to file a report within 48-hours under the WPR, and subject to a 60-day “withdrawal clock” under which it would be required to withdraw U.S. forces from any ongoing hostilities at the 60-day mark.
Does this administration believe that the 2001 AUMF provides ancillary authority to defend either U.S. forces or partner forces from attack by a group not otherwise covered by the AUMF? For example, do you believe that the Trump administration properly relied on the 2001 AUMF as authority for operations in defense of US and partner forces in Syria in 2017? More broadly, under what circumstances is it appropriate to invoke the 2001 AUMF authority as a source of self-defense and under what circumstances is it appropriate to rely on the President’s Article II authority?
Who Decides Against Whom the U.S. Goes to War?
Background: The text of the Constitution and its history suggest that primary authority for decisions about when to go to war will reside with Congress except in cases where it is necessary for the president to act unilaterally to repel sudden attack. Nevertheless, the executive branch has arrogated to itself, and Congress has ceded, considerable authority over the years when it comes to matters of war and peace. As interpreted by the executive branch, the 2001 AUMF has aligned with this recalibration when it comes to the war on terror because it delegates to the president the power to “determine” against whom to use force. Consequently, it has been the executive branch rather than Congress that has for twenty years determined which groups the United States is fighting in the war on terror, sometimes taking decisions that have been invisible to the public, and to many (if not most) members of Congress.
What is the process by which the executive branch currently determines which groups are covered by the 2001 AUMF? Are these decisions made before or after the United States begins using force against such groups? Have you added any new groups to the conflict during this administration and if so which one? Do you believe that Congress should have a role in determining which groups are covered by the use of force authorization? Would you support amendments to the AUMF to make this clear?
Background. In recent weeks U.S. Africa Command (AFRICOM) conducted the first airstrikes of the Biden administration in Somalia. The executive branch, starting with the Obama administration, has deemed the United States to be at war with the Somali insurgent group, al Shabaab. (A discussion of the process by which part and then all of the group was deemed to fall under the AUMF can be found here.) Communications relating to the recent strikes have been confusing. AFRICOM has characterized them as “collective self-defense,” but these strikes appear to provide close air support for offensive operations by Somali partner forces. AFRICOM has also cited the 2001 AUMF as the domestic legal authority for the strikes, on the grounds that al Shabaab is an “associated force” of al Qa’ida. A term of legal art under the 2001 AUMF, the executive branch defines an “associated force” as an organized, armed group that has entered the fight alongside al-Qa’ida or the Taliban and is a co-belligerent with al-Qa’ida or the Taliban in hostilities against the United States or its coalition partners.
What was the legal authority for the recent airstrikes in Somalia? Given that the 2001 AUMF doesn’t mention al Shabaab or Somalia, how did the United States come to be at war with al Shabaab? Had al Shabaab ever specifically targeted Americans or the U.S. homeland prior to the Obama administration determining that it was an “associated force?” Did the Biden administration review the Obama or Trump administration’s determination and, if yes, on what basis did it decide to affirm it? Should Congress have had a role in that decision?
Background. U.S. forces remain in Iraq and Syria for the stated purpose of supporting partner forces in the continuing fight against ISIS. The domestic legal authority cited by the executive branch for the use of force by the U.S. military against ISIS is principally the 2001 AUMF. While stationed in Iraq conducting their counter-ISIS mission, U.S. forces have repeatedly come under attack by Iran-backed paramilitary forces using rockets and drones. Twice during the Biden administration, in February and June, U.S. forces have responded with air strikes. The stated domestic legal basis for the U.S. airstrikes was Article II of the Constitution and the strikes were reported under the WPR. Notably, the Biden administration has not taken the position that such strikes were authorized under the 2001 or 2002 AUMFs, in contrast to the Trump administration, which cited the 2002 AUMF in connection with the 2020 strike on Iranian General Qassem Soleimani. Although some committee members such as Senator Chris Murphy and former officials have suggested that the United States is in unauthorized hostilities with a new enemy and that the WPR’s 60-day clock is ticking, the Biden administration does not appear to agree that it is in ongoing hostilities, or that it is therefore on the clock. The Biden administration recently gave a classified briefing to the Senate Foreign Relations Committee on these strikes that reportedly left a number of questions unanswered.
Why did the Biden administration rely on Article II of the Constitution instead of the AUMFs for these recent strikes against Iran-backed paramilitaries? Under the WPR doesn’t the ongoing pattern of strikes and counterstrikes mean that the administration has 60 days to seek authorization for hostilities or withdraw? In what sense were these strikes defensive – did you have specific intelligence connecting the targets to imminent attacks, and did you believe that the U.S. strikes would prevent these attacks? The administration’s WPR report singled out Iran’s role in supporting these militias; were you suggesting that under the circumstances the president would have had authority to strike Iran without congressional approval and, if yes, how would you square that with the Constitution?