As the House of Representatives prepares to embark on renewed efforts to repeal and replace outdated war authorizations, it will need to grapple with a fundamental question: who decides against whom the country goes to war. The Constitution’s Declare War Clause entrusts this power to the legislature, but for the two-decade long U.S. war on terror, that authority has been effectively delegated to the president through the 2001 Authorization for Use of Military Force (2001 AUMF). Proponents for broad delegation of this war power to the executive branch might argue that the president needs flexible authority to respond to unpredictable and emergent terrorist threats. Robust oversight, including through comprehensive reporting requirements, the argument goes, is an adequate safeguard against any overreach by the White House.
The executive branch’s recent practice with respect to such statutory reporting obligations casts doubt on the sufficiency of those requirements by themselves to inform Congress and the public about how the country uses force. As one of us has previously written, the executive branch’s compliance with the reporting requirements of the War Powers Resolution, particularly in Africa, has been spotty. Here for the first time, we share a previously undisclosed (though unclassified) reports on the use of military force submitted to Congress pursuant to Section 1285 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA FY 2020), codified at 50 U.S.C. 1550. As one of us previously noted, this reporting requirement is one of several that the Biden administration has either not complied with fully or failed to comply with entirely. Indeed, the circumstances of this report’s delivery to the legislature and its contents speak to the inadequacy of even thoughtful and well-designed reporting requirements. As this document demonstrates, reporting requirements are no substitute for substantive constraints.
The Section 1285 reports were submitted pursuant to a requirement enacted by Congress in 2019, following the 2017 attack by fighters from the Islamic State in the Greater Sahara on U.S. and Nigerien soldiers at Tongo Tongo, Niger that killed four U.S. soldiers. The attack caught many members of Congress seemingly unaware of the U.S. military presence in Niger, much less the reality that U.S. forces were engaging in combat. The attack was followed in December by U.S. Green Berets engaging in what one former U.S. official described as a “big battle” involving U.S. mortar fire in support of Nigerien partners against the Islamic State West Africa Province near Lake Chad. This latter incident was not publicly disclosed until months later. With respect to both incidents, the Trump administration claimed after the fact that they were authorized by the 2001 AUMF, even though this authorization had not previously been understood to apply to either of these Islamic State affiliates.
In order to prevent further surprises, Congress bolstered reporting requirements regarding the use of military force, including for operations under the 2001 AUMF. To that end, Section 1285 requires in subsection (b) a report every six months that “shall” include the following:
(1) A list of each country or organization with respect to which force has been used pursuant to the Authorization for Use of Military Force, including the legal and factual basis for the determination that authority under such law applies with respect to each such country or organization.
(2) An intelligence assessment of the risk to the United States posed by each such country or organization.
(3) A list of each country in which operations were conducted pursuant to such law and a description of the circumstances necessitating the use of force pursuant to such law, including whether the country is designated as an area of active hostilities.
(4) A general description of the status of operations conducted pursuant to such law as well as a description of the expected scope and duration of such operations.
(5) A list of each partner force and country with respect to which United States Armed Forces have commanded, coordinated, participated in the movement of, or accompanied the regular or irregular forces of any foreign country or government that have engaged in hostilities or there existed an imminent threat that such forces would become engaged in hostilities, including—
(A) a delineation of any such instances in which such United States Armed Forces were or were not operating under the Authorization for Use of Military Force; and
(B) a determination of whether the foreign forces, irregular forces, groups, or individuals against which such hostilities occurred are covered by such law.
(6) A description of the actual and proposed contributions, including financing, equipment, training, troops, and logistical support, provided by each foreign country that participates in any international coalition with the United States to combat a country or organization described in the Authorization for Use of Military Force.
Significantly, the law also provides that “[t]he information required under paragraphs (1) and (2) of subsection (b) shall be submitted in unclassified form.” (emphasis added)
The Long-Delayed Reports
Section 1285 required the submission of a report “[n]o later than 180 days after the date of the enactment of this Act and every 180 days thereafter.” Given that President Trump signed the provision into law on December 20, 2019, a report to Congress by June 17, 2020 would have been expected with another following in December of that year. Subsequently, the Trump administration never filed any reports despite the requirements of the law. As one congressional staff member explained to one of us, after Trump’s first impeachment in 2019, his administration mostly ceased to cooperate with congressional oversight.
The incoming Biden administration also failed to file the required reports for its first year. Six months into its term, the White House did delegate the responsibility to prepare and submit the report to the Department of Defense. But no report was sent to Congress until March 2022, immediately before senior administration officials were to testify before a House Foreign Affairs Committee hearing on authorizations for the use of military force. It was this hearing that finally had the forcing function of goading the executive branch into turning in its homework and complying with the law–800 days after it took effect. However, for unknown reasons neither the Biden administration nor Congress publicly released the reports.
The document submitted to Congress in March 2022 contained three reports – one for each of the six-month periods from January 1, 2020 to June 30, 2021. However, the March 2022 document omitted the most recent six-month time period. Nor to our knowledge has the administration submitted the subsequent six-month reports required by law. Thus, despite committing (on page 4) to submit the July 1 to December 31 2021 report “as quickly as possible” and provide subsequent reports “on time for future reporting periods,” it appears that the administration has submitted no reports under the provision following the U.S. withdrawal from Afghanistan.
The Underwhelming Report and Contestable Classification
The text of the report (which neither the executive branch nor Congress has officially released to the public) is as notable for what it does not include as for what it does—and for the legal issues raised by these omissions. Such omissions are not a complete surprise. In his signing statement accompanying the NDAA FY 2020, President Trump labeled Section 1285 as one that might “mandate or regulate the dissemination of information that may be protected by executive privilege, including by interfering with presidential control of the process for making a determination that information is protected.” (A seeming circuitous reference to the president’s classification authority.)
Further, the Pentagon states in a cover note to the reports themselves (without citation to supporting legal authority) that:
A classified annex accompanies this report. Section 1285(c) requires certain information be submitted in unclassified form. Because some of that information is properly classified to protect the national security interests of the United States, the more complete information is presented in the classified annex.
As a result of this claimed authority by the executive branch, it appears that some of the most significant information—including who the United States has used force against—has been shunted to a classified annex. For example, in reporting U.S. operations in Afghanistan during the first half of 2020 (prior to the U.S. withdrawal), the report states:
(U) The following are the organizations in Afghanistan during this reporting period against which the U.S. military used force pursuant to the 2001 AUMF: (1) al-Qa’ida; (2) the Taliban, (3) the Islamic State of Iraq and Syria (ISIS); and (4) certain other terrorist or insurgent groups affiliated with al-Qaida or the Taliban in Afghanistan. (emphasis added)
(U) Additional information relevant to this reporting period is provided in the classified annex.
Despite the statutory requirement that each “country or organization with respect to which force has been used pursuant to the [2001 AUMF]” be listed in unclassified form, the unclassified report does not further identify the “affiliated” groups in the fourth category.
(The caveat regarding the classified annex is not invoked regarding the use of force in Iraq, Somalia, and Syria. In those three countries, the reports specify that the “U.S. military used force pursuant to the 2001 AUMF” respectively against: 1) al-Qa’ida and ISIS; 2) al Shabaab and ISIS; and 3) al-Qa’ida and ISIS.)
This lack of specificity as to who the United States is at war with has unfortunately been more the norm than the exception during the two decades of the war on terror. This has been true both regarding those groups against whom the U.S. military has actually used force against pursuant to the 2001 AUMF (the subject of the Section 1285(b)(1) reporting requirement) and the potentially larger constellation of entities the executive deems covered by the 2001 AUMF (subject to a separate reporting requirement, 50 U.S.C. § 1549a(2)(A)). Now, as during much of this period, the full list of groups deemed to be covered by the 2001 AUMF by the executive branch is a secret. A key development, however, is that since Section 1285 became law, the executive branch has been withholding information from the public about whom the U.S. has used force against in contravention of an explicit statutory obligation.
(The legal issues raised by the apparent refusal of the Pentagon to provide in unclassified form certain information despite a statutory requirement will be the subject of a subsequent article.)
What is al-Qa’ida for the purposes of the 2001 AUMF?
Despite the limited transparency on the scope of the 2001 AUMF, the report nonetheless contains some intriguing hints as to how the executive branch currently conceives of al-Qa’ida for the purposes of this war authorization. First, the report refers to “al-Qa’ida, including al-Qa’ida in the Indian Subcontinent (AQIS),” suggesting that AQIS is deemed to be al-Qa’ida for the purposes of coverage by the 2001 AUMF. Conversely, in discussing al-Qa’ida in Syria, the report states that the group “continues to struggle to operate in Syria due to Hay’at Tahrir al-Sham dominance in Idlib Province.” The U.S. government’s apparent distinction between al-Qa’ida and Hay’at Tahrir al-Sham (HTS) is meaningful because the executive branch has regarded HTS’s predecessor organization al Nusra Front to be “part of” al-Qa’ida for the purposes of the 2001 AUMF. The legal metes and bounds of “al-Qa’ida” under the 2001 AUMF matter both in terms of how the U.S. government understands the organization today and conceives of its own legal authority to use force—including lethal force—against the group.
Risk Assessment: Have We Passed the “Tipping Point” of the War on Terror?
Throughout the report, the risk to the U.S. homeland from al Qa’ida, ISIS, and al Shabaab is characterized as either probably “low” or even nonexistent. For example, the report states for the first half of 2021, “al Qa’ida probably poses a low threat to U.S. interests in Syria and abroad.” In discussing Iraq during that period, the report states “[a]l- Qaida probably lacks the intent and capability for attacks abroad after suffering leadership losses after years of counterterrorism pressure” while ISIS “probably lacks the capability to direct an attack against the U.S. homeland.” Regarding ISIS in Syria, the group “probably lacks the capability to target the U.S. homeland.” The ISIS branch in Somalia probably poses “no threat to the U.S. homeland.” As for al-Shabaab, it probably poses “a low threat to the U.S. homeland.”
These characterizations of the threats to the United States are relevant both to the policy question of whether the use of force remains necessary (an issue the report addresses primarily in the classified annex), but also the legal questions of whether the use of force remains authorized under the 2001 AUMF as a matter of domestic law and whether the United States remains in an armed conflict under international law. The AUMF provides that force is authorized “in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons” including those that committed the 9/11 attacks or harbored those responsible. While the report is not clear what specifically it means by “low,” if the probability of such future acts against the United States is de minimis, does the use of force remain authorized?
The end of non-international armed conflicts (which the United States considers itself to be engaged in with these groups) is poorly defined in international law. Although the reports reiterate throughout that the United States remains in an armed conflict with these entities, there is some tension between these assertions and prior U.S. government characterizations of how to identify the end of the post-9/11 non-international armed conflicts. Speaking at Oxford University in 2012, Jeh Johnson then the General Counsel of the Department of Defense described how, in the absence of a peace treaty or surrender, the U.S. conflict with al-Qa’ida would legally terminate:
[T]here will come a tipping point – a tipping point at which so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.
At that point, we must be able to say to ourselves that our efforts should no longer be considered an “armed conflict” against al Qaeda and its associated forces; rather, a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats.
The foundational theme of Johnson’s speech was that this non-international armed conflict would come to an end. Johnson characterized war as a “finite, extraordinary and unnatural state of affairs” and urged that “we must not accept the current conflict, and all that it entails, as the ‘new normal.’” Indeed, following the speech and prior to the 2014 rise of ISIS, scholars had begun to grapple with the appropriate legal frameworks to govern the response to terrorism once Johnon’s “tipping point” had been reached.
Although the reports state that the United States remains in an “armed conflict” against al-Qa’ida and associated forces, including ISIS, the threat assessments in the Section 1285 reports squarely raise the question of whether the United States has passed the “tipping point” such that U.S. counterterrorism efforts are no longer considered an armed conflict under Johnson’s formulation. If the Biden administration no longer adheres to the “tipping point” framework, it is unclear how it conceives of the legal end of the armed conflict with these groups.
The Section 1285 reports submitted in 2022 are a testament to the hurdles Congress faces in extracting timely, relevant, and usable information from the executive branch regarding the 22-year war on terror. Even when Congress mandates the unclassified sharing of information through statute, the executive branch, through a combination of noncompliance and outright defiance of the law, delays providing the legislative branch with required information or does so in a classified format that does not lend itself to public debate and deliberation.
Despite the tardy and underwhelming contents of the document, its tantalizing hints about how the Biden administration views the war on terror merit attention. There are suggestions that the scope of “al-Qa’ida” for AUMF purposes may have evolved in recent years, perhaps increasing even further the executive branch’s capacity to unilaterally expand lethal operations to additional groups never contemplated by Congress. More significantly, the report raises the question of whether under the executive branch’s own previously announced theories, the armed conflict with al-Qa’ida, ISIS, and their affiliates is effectively over because these groups lack the capacity to mount a strategic attack on the U.S. homeland.
Taken together, these aspects of the report and its delivery to the legislative branch should prompt Congress to consider some fundamental questions as it seeks to overhaul the 2001 AUMF. If the threat to the United States from jihadi groups is probably low, is the use of military force still necessary? If so, against whom? Ultimately it should be Congress answering these questions as contemplated in the Constitution and not delegating these powers to the executive branch and then hoping, likely in vain, that the Pentagon will adequately keep both the legislature and the public in the loop regarding the United States’ wars.