On September 28th, the House Foreign Relations Committee (HFAC), held a 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). 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 that form the focus of discussions on AUMF reform.
The hearing came as HFAC considers what to do with four outdated war authorizations: a 1957 Middle East resolution, the 1991 Authorization for Use of Military Force against Iraq (1991 AUMF), the 2001 Authorization for Use of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 thus the debate about reforming this resolution dominated the hearing.
The hearing usefully clarified the Biden administration’s vision for a replacement for the 2001 AUMF and surfaced areas of both agreement and discord between the administration and the committee as well as within HFAC itself. Unfortunately, the administration currently proposes that Congress pass a new AUMF that would indefinitely delegate Congress’s war powers to the President – hardly the reclaiming of Article I power envisioned in the hearing’s title. Further, it emerged that some members of the committee want to give the White House legal authority to use force that President Biden isn’t asking for and doesn’t want. The hearing also highlighted the interplay between the authority to use force conferred by an AUMF and the president’s war powers under Article II of the Constitution to take action without congressional authorization, as well as the weak guardrails on those powers.
The Administration Position on Reforming the 2001 AUMF: Authority for Boundless, Endless War
As laid out in both the written statements of the administration witnesses (here, here, and here) and their testimony in the hearing, the Biden administration’s vision for reforming the 2001 AUMF is for Congress to pass a new sweeping and indefinite delegation of war power to the president for military counterterrorism operations. The administration seeks explicit statutory authority to use force against al-Qa’ida, ISIS, and al Shabaab, the groups the United States is purportedly currently in armed conflict with. Conversely, the executive branch is not seeking such explicit authority to use force against the Taliban and Iran-backed groups. The administration does however favor a mechanism that would allow the executive branch the unilateral authority to add new “associated forces” to the scope of any war authorization, thereby empowering the president rather than Congress with the power to decide who the country goes to war with. (Depending on the definition of “associated forces” in a new AUMF, such a mechanism could enable a future administration to unilaterally add the Taliban and/or Iran-backed groups to the scope of that authority down the road.)
Under Secretary Nuland also testified that any new AUMF should be “global” and enable the executive branch to unilaterally apply the authority to new geographic areas. “Most importantly” according to the statement by Acting Legal Adviser Visek, a new AUMF should not include a sunset provision though the administration expressed openness to “regular, transparent, reviews of the authority.” As Nuland and Maier explained during the hearing, the administration opposed a sunset provision because, in the view of the executive branch: 1) it would purportedly signal to U.S. adversaries that “they could wait us out”; 2) it could result in a lapse in detention authority (most relevant for ongoing detentions at Guantanamo Bay); and 3) it could undermine the cohesion of the counter-ISIS coalition.
Sunset Provisions–Adopting the Trump-Mattis Position
The Biden administration’s preferred elements for a new war authorization are a departure from the approach of the Obama administration to AUMF reform, particularly the rejection of a sunset provision. In a 2013 speech, President Obama pledged he would “not sign laws designed to expand [the 2001 AUMF’s] mandate further” and stated that “this war, like all wars, must end.” Consistent with that commitment, the 2015 draft ISIS-AUMF the Obama administration proposed contained a three-year sunset that Obama hoped could “serve as a model for how we can work together to tailor the authorities granted by the 2001 AUMF.” (That AUMF was not enacted.) As members of the committee explained during the hearing, a sunset provision serves a forcing function by requiring Congress to periodically reassess whether the use of force remains necessary and prevents war from proceeding on autopilot.
Rather than seek to realize the Obama-Biden administration’s aspirations of constraining the AUMF, including temporally, and living up to President Biden’s own stated goal of ending “forever wars,” the Biden administration has instead embraced a vision for an AUMF conferring boundless, endless authority. There is precedent for this. Notwithstanding President Trump’s own rhetoric about “ending endless wars,” his administration opposed any geographic restrictions or sunset in an updated AUMF. Prefiguring the arguments advanced by Nuland and Maier in last week’s hearing, Trump’s first Secretary of State Rex Tillerson argued that a sunset “could unintentionally embolden our enemies with the goal of outlasting us.”
The Trump administration’s preferred elements for a new authorization were themselves adopted from a 2015 proposal by Trump’s future Secretary of Defense Jim Mattis in what was a rebuttal to the Obama administration’s AUMF proposal. Mattis rejected time limits because they “would unintentionally embolden our enemies with the recognizable goal of outlasting us.” Thus, by recapitulating its predecessor’s preferred formula for an unbounded war authorization, the White House is ironically endorsing a conscious rejection of the Obama-Biden administration’s more constrained approach to AUMF reform.
Views of the Committee
The Taliban and Iran-backed groups
During the hearing, HFAC Chairman Michael McCaul (R-TX) argued that a new AUMF should explicitly apply to both the Taliban and unspecified Iran-backed groups. With respect to the Taliban (the de facto authorities in Kabul), McCaul suggested that they were a threat to the United States because of their links to al-Qa’ida. Regarding Iran-backed groups, he invoked their repeated attacks on U.S. forces in Iraq and Syria, including during the Iraq War.
Under Secretary Nuland pushed back against these suggestions, observing that the Taliban was conducting its own counterterrorism operations in Afghanistan including to disrupt ISIS-Khorasan province. As for Iran-backed groups, Nuland noted that the president had authority under Article II of the Constitution to defend U.S. personnel and had repeatedly used force on the basis, but did not require an AUMF to counter these entities.
The Need for a Sunset and the Inadequacy of Alternatives
Both Democratic and Republican members of the committee pushed back against the administration’s opposition to a sunset provision for a new AUMF. Representative Ken Buck (R-CO), the Republican lead of a bipartisan study group on AUMF reform, argued that a sunset would provide a useful forcing function for Congress by requiring it to reassess the continued need to use force. He asked that the administration reconsider its position on time limits. His Democratic counterpart, Dean Phillips (D-MI) pressed the witnesses on why they opposed a sunset provision in light of the Obama administration’s prior support for one and stated that the absence of a sunset would be a “non-starter.” Citing his own military service during the war on terror, Jason Crow (D-CO) explained that he wasn’t concerned about a sunset signaling lack of resolve and said “good riddance” to foreign partners who might waver because the U.S. Congress needed to debate the use of force.
As an alternative to a sunset provision with a reauthorization requirement, Under Secretary Nuland suggested a presidential certification requirement as a potential alternative, though was unable to provide details about what this would entail when pressed. Acting Legal Adviser Visek was asked how Congress could practically impose binding constraints during any periodic review of an AUMF, given the possibility of a presidential veto. Apparently referring to the Supreme Court’s holding in INS v. Chadha, Visek responded that the administration was mindful of the “requirements of bicameralism and presentment.” (In Chadha the Court held that a one house legislative veto was unlawful because it did not comply with the bicameralism or presentment requirements of the Constitution.)
Visek’s allusion to Chadha highlights the stark design choice facing Congress as it considers reforming the 2001 AUMF. Congress can, consistent with the title of the hearing, reclaim its war powers and decide against whom the United States should use military force, where it should use force, and for how long before Congress reassesses the situation. Or it can formally delegate those powers to the president, perhaps indefinitely, with little practical ability to later impose binding constraints on how the executive exercises those powers. Chairman McCaul seemed to allude to a subsequent concurrent resolution of disapproval (which would not be presented to the president for signature) as a potential means to trigger a sunset provision or otherwise prevent the executive branch from expanding the scope of a new war authorization. But that tool would be legally ineffective. Under Chadha, in order to be legally binding, any subsequent congressional attempt to check the executive branch would require a joint resolution with veto-proof majority, a virtually impossible obstacle to overcome.
What Other Wars Might this or a Future Administration Want to Fight?
The hearing also shed some light on how the administration thinks about using military force in new theaters. In arguing for the need for the executive branch to have the unilateral authority to add additional groups to any updated AUMF, Nuland repeatedly referred to the need for potential flexibility in the Sahel. She also suggested in an exchange with Representative Young Kim (R-CA) that the administration regarded the (unspecified) al-Qa’ida and ISIS affiliates in the Sahel to currently be covered by the 2001 AUMF. (Nuland did not elaborate on when or why the executive branch decided to add these groups to the scope of the 2001 AUMF.)
These statements are significant both because of the counterterrorism infrastructure the United States retains in Niger despite the recent coup and the strength of local jihadi groups–the al-Qa’ida linked JNIM and the Islamic State-Sahel Province (formerly IS-Greater Sahara). As I wrote in Just Security last year, the Sahel could well become the next battlefield in the U.S. war on terror, despite the groups there posing little or no apparent threat to the U.S. homeland.
Who is ISIS for AUMF Purposes?
In response to a question from Representative Jacobs (D-CA) about the standards by which the executive branch determines which groups were covered by the 2001 AUMF, DoD General Counsel Caroline Krass explained that it views ISIS “as itself being a single organized group.” Given the number of ISIS affiliates across the Middle East, Africa, and Asia, this statement has significant implications not only for how the executive branch conceives of the breadth of its current authority under the 2001 AUMF, but also for potential AUMF reform. That the executive branch would arrogate to itself the authority to potentially use force in more than 10 countries against a group that didn’t even exist on 9/11 and is an adversary of al-Qa’ida should underscore the need for Congress to reclaim the power to decide against whom the country is at war and where.
No AUMF for Mexico, but Article II?
Prompted by increasingly frequent proposals by U.S. politicians to use military force against drug trafficking organizations in Mexico, the witnesses were repeatedly asked about the potential use of force in Mexico. Although it is clear that the administration doesn’t believe the 2001 AUMF authorizes the use of force in Mexico and is not interested in a new AUMF against Mexican drug cartels (agreeing it was a “bad idea”), the executive branch’s expansive interpretation of the president’s authority under Article II of the Constitution would leave considerable leeway for a future President to use military force in that country unilaterally.
In response to a query from Congressman Castro (D-TX) about potential military action in Mexico, Caroline Krass recited the two-part test of the Department of Justice’s Office of Legal Counsel for the use of force without prior congressional action. Under this test, a president may unilaterally order the use of force if: 1) it would serve an important “national interest”; and 2) the action would not by its “nature, scope, or duration” amount to “war” in the constitutional sense. Illustrating the weakness of this test and foreshadowing the potential legal justifications for military action in Mexico by a future president, Representative Waltz (R-FL) (who has co-sponsored an AUMF against Mexican drug cartels) compared Mexican drug trafficking organizations to ISIS and al-Qa’ida and pressed the witnesses on whether the death of 100,000 Americans a year from fentanyl was a “national interest” under the OLC test for the use of force.
Conclusion: Time for the Biden Administration to Get Serious About Reform
The HFAC hearing was clarifying about the shallowness of the Biden administration’s conception of AUMF reform, about divisions between the political branches and within the House, and about the risks posed by enabling and reinforcing expansive executive branch legal theories.
It is discouraging that the administration has essentially adopted the overly broad Mattis-Trump framework for a new AUMF. A lesson from the last twenty years of the U.S. war on terror is that an AUMF that enables the president to unilaterally decide against whom the country is at war and which lacks geographic constraints or an expiration date is likely to be a recipe for boundless, endless war. In 2021, President Biden told the United Nations that “I stand here today, for the first time in 20 years, with the United States not at war. We’ve turned the page.” If his administration wants to match its actions with the president’s rhetoric, it needs to reassess the elements of a potential AUMF. Fortunately, there are already well thought out suggestions about what a reformed war authorization should look like (here and here).
For its part, Congress will not only need to push back against the administration’s request for the indefinite delegation of expansive war powers under a new authorization, it should also reject rash suggestions from some of its members to grant authority to refight the last war or unnecessarily start new ones. A congressional authorization for the use of force against the Taliban and/or Iran-backed groups should be a non-starter for the reasons articulated by the administration witnesses during the hearing. The 2002 authorization for the Iraq War should serve as a cautionary lesson in the dangers of enacting “just in case” war authorities. Further, a gratuitous war authorization against these entities would likely needlessly complicate diplomacy with the authorities in Kabul, Baghdad (because of the links of some of these armed groups to the Iraqi government), and Tehran.
The hearing served as a reminder for better and worse that besides congressional authorizations to use force, the president also has authority under Article II of the Constitution. Uncontroversially, such inherent constitutional authority empowers the president to use limited force to defend the United States and U.S. personnel from armed attack or imminent attack. The existence of such constitutional authority undercuts the administration’s claims that it needs unbounded statutory authority to wage war against enemies of its own choosing anywhere in the world, for as long as it likes. The president can rely on his constitutional power for a limited use of force to defend the United States or U.S. persons from an emergent threat and if a longer or broader use of force is necessary, then she or he can go to Congress and make the case for a new war authorization.
But the risks posed by the executive branch’s current, elastic and expansive interpretations of the president’s war powers under Article II were also underscored. Given how malleable OLC’s “national interest” test is, it is all too easy to envisage executive branch lawyers conjuring up a creative legal justification for the use of force (like the missile strikes reportedly proposed by then-President Trump) against drug trafficking organizations in Mexico. Such military action is incredibly risky and would likely create more problems than it solves (see this discussion of negative collateral consequences). To guard against such a reckless attack, the Biden administration should rethink enabling war powers theories that successive administrations have elaborated, and rescind overly broad legal opinions that memorialize some of these theories. It should also work with Congress on a structural overhaul of the War Powers Resolution and other measures to bolster war powers guardrails.