On Wednesday, March 2nd, the House Foreign Affairs Committee (HFAC) is scheduled to hold a public hearing entitled, “The 2001 AUMF and War Powers: The Path Forward.”
HFAC is the House committee responsible for drafting Authorizations for the Use of Military Force (AUMFs). Wednesday’s event follows an August hearing by the Senate Foreign Relations Committee (SFRC) on AUMFs, including on legislation to repeal the outdated 1991 and 2002 AUMFs. The Biden administration supports repeal of those AUMFs for reasons that largely track with common sense; both govern wars that have long been over.
The Biden administration’s views on the 2001 AUMF have not been fully presented to the public, though it has endorsed “narrow, clear, and specific frameworks” for the use of force. 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 witnesses — Deputy Secretary of State Wendy Sherman, 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 (pressing the witnesses, for example, on whether the authorization applies to recent fighting with Iran-backed groups in Iraq and Syria and as well as operations in the Sahel), 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 topics, what follows are suggested questions that members of the HFAC might pose to the administration. And better yet, what the witnesses themselves should proactively convey to the American public and Congress.
2001 AUMF REFORM
Background. 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. 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. In practice, the executive branch relied on this war authorization for operations from Guantanamo Bay, 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. The Executive Branch does not read the 2001 AUMF as being confined to its actual text. 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.
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 an accurate picture. It is true that the tempo of military operations has significantly diminished: Indeed, according to U.S. military data analyzed by Airwars, there was a 54% reduction in U.S. airstrikes in 2021 compared with the previous year and the lowest number of strikes since 2004. The dramatic fall off in airstrikes is a result of policy decisions by the Biden administration, but also of changed facts such as the destruction of ISIS’s territorial caliphate.
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, including a drone strike on an “al Qaeda leader and planner” in northwest Syria, supporting the Syrian Democratic Forces in repulsing an ISIS attack in Hassakah, Syria, and killing the leader of ISIS in a raid in Idlib, Syria. As recently as Feb. 23, the Pentagon conducted an airstrike against al-Shabaab in Somalia.
What’s more, the United States is postured to resume airstrikes in Afghanistan. The White House has repeatedly stated its intent to conduct “over-the-horizon” strikes in the country, a claim supported by data from U.S. Central Command showing hundreds of preparatory intelligence, surveillance, and reconnaissance (ISR) flights as well as testimony from officials such as Lt. Gen. Kurilla that demonstrate the administration is preparing for future strikes against al Qaeda and ISIS-K.
Regarding reform of the 2001 AUMF, Deputy Secretary Sherman said, in August testimony before the Senate Armed Service committee that the Biden administration supports “narrow, clear, and specific frameworks” for the use of force. Yet the administration has shared few details of its vision for such a framework.
Questions:
- 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 a new AUMF 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 obtain reauthorization?If the administration is not prepared to answer these questions now, when will it be?
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. Further, the Biden administration like its predecessor has failed to submit to Congress a comprehensive report of actions taken under the AUMF as legally required by 50 U.S.C § 1550. 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.
Questions:
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?
When will the administration provide the comprehensive report required by 50 U.S.C § 1550?
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-Syrian 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.
Questions:
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 in carrying in using force against pro-Syrian government forces?
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: According to the text of the Constitution and its history, the primary authority for decisions about when to go to war resides 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. The 2001 AUMF reinforces this trend 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.
Questions:
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? Has the executive branch removed any from the list and if so, which ones?
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?
The President’s Constitutional Authority to Use Force
Background. In addition to congressional authorization to use force through Article I of the Constitution (such as the 2001 AUMF), Presidents also have some unilateral authority to use force under Article II, including pursuant to the Commander-in-Chief clause. Although the executive branch has taken a very broad view of the President’s unilateral war-making powers, the Department of Justice’s Office of Legal Counsel (OLC), has recognized some notional checks on this power.
According to the OLC’s interpretation of the law: First, the use of force must, in the view of the President, advance a sufficiently important national interest. Second, that the nature, scope and duration of the anticipated hostilities will not rise to the level of “war in the constitutional sense” such that it would encroach on Congress’s Article I war powers. In this analysis, the risk of escalation weighs heavily in whether hostilities will amount to “war.” The “national interest” test, however, has been deemed to include everything from self-defense to regional stabilization, rendering it close to meaningless. The “war in the constitutional sense” test has been unevenly applied. However, several expansive OLC opinions still on the books call into question even these notional constraints. For example, in the run up to the Afghanistan and Iraq invasions, OLC issued opinions suggesting that President Bush would have unilateral authority even in the absence of statutory authority to launch those wars. While widely repudiated, the opinions remain on the books. Many have called for their recission as some other OLC opinions from that period that were rescinded. More recently, in a still redacted memo, OLC concluded that President Trump had authority to kill General Qassem Soleimani, notwithstanding the predictable and predicted risk of escalation.
Questions:
What are the limits to the President’ authority to unilaterally use force under Article II of the Constitution?
Even in the absence of the 2001 AUMF, does “the Constitution vest[] the President with the plenary authority, as Commander in Chief and the sole organ of the Nation in its foreign relations, to use military force abroad” as a 2001 OLC opinion by John Yoo concluded? Does this opinion reflect the views of the Biden administration?
Similarly a 2002 OLC opinion by Jay Bybee concluded that “congressional authorization is not needed before the President may direct the use of force against Iraq.” Was this a correct judgment? If President Biden were in a similar situation would you advise the he has the unilateral power to use force?
Does the administration intend to review these and other war powers legal opinions, such as the memo blessing the attack on Soleimani, for possible rescission? If not, why not? Will the administration keep this committee informed of the status of any such reviews?
Operational Theaters
Somalia
Background. On Feb. 22, U.S. Africa Command (AFRICOM) conducted the latest airstrike in Somalia. DOD characterizes the most recent strike as well as several strikes last summer as “collective self-defense,” in “in support of combatant commander-designated partner forces.” As detailed in the Crisis Group report Overkill, the executive branch, starting with the Obama administration, has deemed the United States to be at war with the Somali insurgent group, al Shabaab, under the 2001 AUMF because the group 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. The announcement in 2016 that al Shabaab was covered by the 2001 AUMF followed at least a year of ground combat by U.S. forces in Somalia as well as a number of airstrikes conducted in “collective self-defense” of partner forces. In connection with the February 2022 strike, AFRICOM stated that “al-Shabaab presents a long-term threat to the U.S. and regional interests,” perhaps acknowledging that al Shabaab is not an immediate threat to the United States.
- 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?
- AFRICOM has stated al-Shabaab “presents a long-term threat to the U.S.” In what way? If there is no immediate threat to the U.S. why is the use of military force necessary against al-Shabaab? Will the administration publicly release a list of all “combatant commander designated partner forces?”
Iraq/Syria/Iran
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 2021, the White House notified Congress of airstrikes against these groups consistent with the War Powers Resolution. The stated domestic legal basis for the U.S. airstrikes was Article II of the Constitution and the strikes were reported under the WPR. Yet, subsequent hostilities between U.S. forces and pro-Iran fighters have continued without further notifications under the WPR. These include a suicide drone attack on U.S. forces at al-Tanf garrison and an attack on U.S. and partner force in northeast Syria in January 2022. The administration’s failure to send notifications to Congress within 48 hours regarding these attacks have led members of Congress to pose questions to the administration about the specific authorities for these actions without receiving a response.
Questions:
- Why did the Biden administration rely on Article II of the Constitution instead of the 2001 AUMF for strikes against Iran-backed paramilitaries in 2021? Under what legal authority did U.S. forces conduct hostilities against Iran-backed fighters at al-Tanf garrison in October 2021 and in northeast Syria in January 2022. If Article II of the Constitution, why weren’t these hostilities notified under the WPR? If the administration relied upon the 2001 AUMF for these actions, what is the legal theory?
UAE/Yemen
Background. In recent months U.S. forces stationed at al Dafra airbase in the U.A.E. have repeatedly used Patriot missile interceptors for the first time in combat in almost 20 years. On previous occasions when U.S. forces resorted to Patriots, it was in the context of congressionally authorized conflicts, the 1991 Gulf War and the 2003 Iraq War. The recent use of these interceptors was necessitated by missile attacks on al Dafra attributed to Houthi militants, in apparent retaliation for Emirati military support for anti-Houthi forces in Yemen. The executive branch has interpreted “hostilities” under the WPR to include “exchanges of fire with opposing units of hostile forces.” Additionally, it has previously reported such “unit self-defense” actions by U.S. forces in 48-hour hostilities reports to Congress, including during the so-called “Tanker War.” The Biden administration, however, did not report these recent exchanges of fire to Congress as seemingly required by the WPR.
Questions:
- What is the legal basis for U.S. forces at al Dafra exchanging fire? Do such exchanges of fire constitute hostilities under the WPR? If not, why not?