On Thursday, September 28th, the House Foreign Affairs Committee (HFAC) is scheduled to hold a public hearing entitled, “Reclaiming Congress’s Article I Powers: Counterterrorism AUMF Reform.”
HFAC is the House committee responsible for drafting Authorizations for the Use of Military Force (AUMFs). Thursday’s hearing comes as HFAC considers what to do with four outdated war authorizations: a 1957 Middle East resolution, the 1991 Authorization for Use of Military Force against Iraq (1991 AUMF), the 2001 Authorization for Use of Military Force (2001 AUMF), and the 2002 Authorization for Use of Military Force Against Iraq (2002 AUMF). The Senate has already voted to repeal the 1991 and 2002 Iraq AUMFs, which like the 1957 resolution, the executive branch does not currently rely on. The 2001 AUMF, however, is the primary statutory authority for the conduct of military counterterrorism operations and questions about its reform tend to be contentious.
One hopes senior policy and legal officials in the Biden administration will take the opportunity to make some of the difficult decisions necessary to seriously engage with HFAC on addressing this decades old authorizations, particularly on reforming the 2001 AUMF. The witnesses — Under Secretary of State for Political Affairs Victoria Nuland, Acting Legal Adviser of the State Department Rich Visek, the General Counsel of the Department of Defense Caroline Krass, and Assistant Secretary of Defense Chris Maier — have deep expertise in both the legal and policy aspects U.S. counterterrorism operations and are well equipped for these discussions.
For their part, members of Congress should seek to determine exactly how the executive branch currently interprets and relies on the 2001 AUMF, where and against whom the administration believes the AUMF enables the use of force, and where the administration stands on various proposed reforms to the 2001 AUMF that have been widely discussed. (Some of these issues and suggestions for statutory reform were previously examined here and here.) To get at these topics, what follows are suggested questions that members of the committee might pose to the administration.
Scope of the 2001 AUMF
As noted, the 2001 AUMF is the principal statutory authority for U.S. military counterterrorism operations. The legislation provides in pertinent part and without further elaboration in its text:
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.
As interpreted by the executive branch, the 2001 AUMF delegates to the president the decision where and against whom to use military force against the entities identified in the authorization. But those entities are broadly described, and the statute lacks either geographic or temporal boundaries, leaving the executive branch some room for maneuver. It has taken advantage of this flexibility, and then some. As described in the Crisis Group report Overkill: Reforming the Legal Basis for the War on Terror, over the last two decades the executive branch has stretched the scope of the AUMF through creative legal interpretations. The executive branch does not read the 2001 AUMF as being confined to the groups referred to in its actual text. Instead, over the last twenty years, administrations of both parties have relied on this war authorization for operations against not only al Qa’ida and the Taliban, the groups who respectively conducted the 9/11 attacks and harbored the attackers, but also against other entities. These include so-called “associated forces” and ISIS (which emerged from al Qa’ida but is no longer affiliated with it).
The concept of “associated forces” which does not appear in the text of the AUMF but was instead invented within the executive branch, refers to groups that have specified links to al Qa’ida but did not participate in or support the 2001 attacks at the time. Although originally developed to justify the detention of individuals held at Guantanamo Bay, the concept of “associated forces” was later redeployed to enable the targeting of groups who did not fall into the categories enumerated in the 2001 AUMF. 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.
The 2001 AUMF also provides statutory authority for the United States to detain those persons who were part of, or substantially supported, Taliban or al-Qa’ida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. During the past decade, the United States has detained individuals pursuant to the authority of the 2001 AUMF in Afghanistan, in Iraq, temporarily at sea, and at the Guantanamo Bay detention facility. The United States continues to detain 41 individuals at Guantanamo Bay.
However, the full list of groups and individuals that the executive branch considers covered by the 2001 AUMF is currently secret. 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 benefits, 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.
Against this backdrop, questions include:
- Will you commit to declassifying the list of groups the executive branch considers to be covered by the 2001 AUMF? And maintaining a public list going forward?
- What affiliates of ISIS do you consider to be covered by the 2001 AUMF?
- Do you agree that the term “harbored” in the 2001 AUMF refers only to the Taliban, who were known to have harbored al Qa’ida at the time of the 9/11 attacks?
- The Trump administration hinted that it might regard Iran as “harboring” al Qa’ida for AUMF purposes. Can you commit to foreclosing that interpretation publicly to guard against future abuse of the statute?
- To what groups do the remaining detainees at Guantanamo Bay belong, particularly those who are not charged in military commissions?
Process for Deciding Who the Country is at War With
The Constitution assigns to Congress the power to determine against whom the country should go to war. But as a matter of practice, under the 2001 AUMF the executive branch has treated the statute as a broad delegation of authority to decide who the country is at war with. The executive branch has generally been vague about the process by which it decides who is covered by the 2001 AUMF, but in 2015 speech the then General Counsel of the Pentagon, Stephen Preston, said that:
The determination that a particular group is an associated force is made at the most senior levels of the U.S. Government, following reviews by senior government lawyers and informed by departments and agencies with relevant expertise and institutional roles, including all-source intelligence from the U.S. intelligence community.
In practice, the executive branch has sometimes used force against a group first and only later announced it was covered by the 2001 AUMF. For example, in 2014 the Obama administration first relied solely on Article II of the Constitution for the use of force against ISIS in Iraq before announcing that the 2001 AUMF, supplemented by the 2002 AUMF provided statutory authority for such operations. And in 2015 and 2016, U.S. forces in Somalia repeatedly conducted strikes against al Shabaab ostensibly on the basis of the “collective self-defense” of local partner forces, but without reporting such hostilities under the War Powers Resolution as seemingly required. The Obama administration only later publicly announced al Shabaab as a whole (rather than just leaders who also belonged to al Qa’ida) was covered by the 2001 AUMF, which would obviate both the reporting and withdrawal requirements of the War Powers Resolution. The case of al Shabaab is particularly notable because the decision to attack the group was made not in Washington by the President, but apparently by U.S. forces in the field.
One of the key issues in reforming the 2001 AUMF is whether Congress should affirmatively decide who the use of force is authorized against (as seems most consistent with constitutional design) or whether it should formally delegate such unilateral power to the President, perhaps through codification of the “associated forces” standard.
- Who within the U.S. government decides whether a group is covered by the 2001 AUMF?
- What is the process?
- How do you decide which parts or affiliates of ISIS are covered by the 2001 AUMF?
- Under what circumstances is it appropriate to use force against a group first and only later deem it covered by the 2001 AUMF?
- Who in the U.S. government decides whether a partner force is eligible for collective self-defense?
- What is the process for such a determination?
- Under what circumstances is the use of collective self-defense authorized for groups not covered by the 2001 AUMF?
- Will the administration publicly release a list of all designated partner forces eligible for collective self-defense?
- How does the timing of collective self-defense strikes against al Shabaab in 2015-16 relate to the determination it was covered by the 2001 AUMF?
- Have you added any new groups to the list of those covered by the AUMF during this administration, and if so, which one(s)?
- Have you removed any from the list, and if so, which ones?
- What criteria do you use for determining whether a group is no longer covered? Do you regularly assess whether groups need to be removed? How frequently?
Threat Assessment and End of the War on Terror
Following the U.S. withdrawal from Afghanistan, President Biden declared before the United Nations, that “for the first time in 20 years, with the United States not at war. We’ve turned the page.” But this does not present a complete picture. It is true that the tempo of military operations has significantly diminished. But despite the rhetoric and reduced operational tempo, the U.S. war on terror continues under the 2001 AUMF. In recent months the U.S. military has repeatedly been engaged in counterterrorism operations in Syria and airstrikes in Somalia against al Shabaab.
Nonetheless, in recently disclosed reports on the use of force submitted pursuant to 50 USC § 1550, the risk to the U.S. homeland from al Qa’ida, ISIS, and al Shabaab is characterized as either probably “low” or even nonexistent – and it is not clear that U.S. personnel overseas are at serious risk either. 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, 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, it raises a question of whether AUMF’s purpose has been achieved and its authority expired.
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.
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 these recently disclosed 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—even aside from the question of who within the U.S. government would make such a determination.
- To what extent are each of the groups the executive branch deems covered by the 2001 AUMF engaged in active hostilities against the United States?
- Which, if any, of these groups has attacked the United States in the last six months? Last year?
- What threat, if any, do each of these groups pose to United States territory?
- How does the administration conceive of the “tipping point” at which some or all of these groups are no longer capable of mounting a strategic attack against the United States? Have any of these groups already reached the “tipping point”? How often do you re-assess this question?
- How does the Biden administration define the end of the armed conflict with these groups?
- What activities is the United States engaged in vis-a-vis that specific group that could not be conducted under the President’s self-defense authority under Article II of the Constitution, law enforcement, or other statutory assistance and training authorities?
Reforming the 2001 AUMF
The Biden administration supports the repeal of the 1991 and 2002 Iraq AUMFs for reasons that largely track with common sense; both govern wars that have long been over. The administration’s views on the 2001 AUMF however have not been fully presented to the public. Proposals for reforming the 2001 AUMF, including from former U.S. officials (see here and here), tend to advocate for rescinding any authority for the executive branch to unilaterally designate enemy forces, impose geographic restrictions on the use of force and impose reauthorization requirements. The Biden administration may not yet be fully onboard with these elements for an updated authorization. For example, in a previous hearing before HFAC in 2022, then Deputy Secretary of State Wendy Sherman stated that:
[A]ny updated or replacement AUMF, Congress should consider establishing mechanisms and standards, that address how it will apply to terrorist groups beyond those that may be identified by name in the text of an AUMF, and to include periodic review of the groups that are subject to the use of force and the locations where force is to be used.
This statement suggests that the administration wishes to retain the ability to unilaterally add additional groups to the scope of any new AUMF.
Further, the Deputy Secretary stated that the administration opposed a sunset provision in any new authorization, “including because we’re concerned about the signal it would send to our adversaries.” This stance is in tension with prior positions of the executive branch. Notably, in 2015, the Obama administration introduced an ISIS-specific AUMF containing a three-year sunset provision, which the administration described at the time as a potential “model for how [Congress and the executive branch] can work together to tailor the authorities granted by the 2001 AUMF.” Although that war authorization failed to gain sufficient support in Congress, if the Obama-Biden White House thought a sunset provision was appropriate for an AUMF near the start of the U.S. conflict with ISIS, it is unclear why the Biden-Harris administration would reject such a measure long after the destruction of ISIS’s territorial “caliphate.”
- Would you commit to any new AUMF identifying the specific enemy group(s), and countries of operation, for which force is authorized?
- Would you commit to supporting a requirement in any new AUMF that it cannot be used as authority for the use of force against any groups or countries that are not explicitly named in the statute, including any purported “associated forces,” “co-belligerents,” “affiliates,” or other “related” groups or nations?
- The Obama administration supported a sunset in its draft counter-ISIS legislation, and past Congresses have included reauthorization requirements in other AUMFs. Former senior officials of both political parties have also pointed a specific need for a reauthorization requirement for any replacement AUMF. Would you support a reauthorization requirement at 3 years?