President Donald Trump administration’s top two foreign policy hands on Monday urged Congress to keep a 2001 war authorization in place, arguing the law still provides a solid legal foundation for U.S. military operations against terrorist and insurgent groups around the globe.
Secretary of Defense James Mattis joined Secretary of State Rex Tillerson to provide testimony to the Senate Foreign Relation Committee, and both leaders cautioned against repeal of the Authorization for the Use of Military Force (AUMF). The 16-year-old law has become the foreign and domestic basis of the fight against not just al-Qaeda and the Taliban, but Islamic State affiliates in the Middle East and Africa, they said.
“This has been a long, 16-year global conflict characterized by a very different form of warfare, specifically terrorism, fueled by extremism, aimed at innocents around the globe,” Mattis said in prepared remarks. “Traditional campaigns to protect our people must adapt to the reality of today’s non-traditional, transnational character of this fight. The 2001 and 2002 authorizations … remain a sound basis for ongoing U.S. military operations against a mutating threat.”
Congress passed the 2001 AUMF just a few days after the 9/11 attacks, giving the president the green light to use “all necessary and appropriate forces against” individuals and countries involved in the attack, particularly al-Qaida and the Taliban. A separate AUMF was passed in 2002 to pave the way for the U.S. invasion of Iraq the following year.
Since then, U.S presidents have relied on the AUMFs — along with constitutionally derived war powers — to provide legal cover for worldwide military intervention without input from Congress. In the wake of a deadly ambush in Niger, where a local ISIS affiliate killed four U.S. soldiers, many lawmakers say a new war authorization is needed to reflect a changed battlefield reality.
The AUMFs have become “authorities of convenience” for administrations of both parties to initiate military action, said Sen. Ben Cardin, the ranking member of the foreign relations committee. The Maryland Democrat noted that he voted for the 2001 AUMF as a House member, but “never intended that it would be used today to justify to use of military force against ISIS.”
The increased scrutiny on the AUMF is a bipartisan effort, with several Republicans joining Democratic colleagues in calling for a re-assessment of the legal authorities underpinning the fight against terror groups. GOP Sens. Bob Corker of Tennessee and Jeff Flake of Arizona are leading the charge on the Republican side to “re-assert Congress’ constitutional role” in the oversight of war making, as Corker put it Monday.
In his opening remarks, Tillerson said the AUMF “remains a cornerstone” for both ongoing military operations overseas and the domestic legal basis for the detention of enemy combatants at Guantanamo Bay.
If lawmakers do decide to update the 2001 AUMF, Tillerson said, they should make sure new authorities are in place before repealing existing ones. Tillerson also recommended against placing time constraints, or “sunset clauses,” and geographical restrictions into a new AUMF that could tie the administration’s hands in dealing with shifting threats.
“It will attempt to burrow into new countries and find new safe havens,” Tillerson said, referring to the remnants of the ISIS “caliphate” that are being driven from Iraq and Syria.
Echoing what Tillerson said was complete administration alignment on the issue, Mattis offered similar justifications for relying on the 2001 AUMF. He welcomed a congressional “expression of unity” in the broad counter-terror campaign, but he discouraged lawmakers from repealing the existing authorities.
“After numerous court cases and debates, there appears to now be a general consensus by all three branched of government that the 2001 and 2002 AUMFs provide sufficient authority to prosecute operations against al-Qaida, the Taliban, and, we believe, ISIS,” Mattis said. “Repealing the 2001 and 2002 AUMFs would only cause unnecessary policy and legal uncertainty, which could lead to additional litigation and public doubt.”
Mattis’ position was met with skepticism on both sides of the aisle. Flake, along with Virginia Democratic Sen. Tim Kaine, sponsored a replacement AUMF in May.
Congress should aspire to be more than a “feedback loop” for the administration’s use of military force, Flake said.
“I would argue that the concern about giving our adversaries notice that we have to vote on something might be an issue,” Flake said. “But it’s overwhelmed in a big way by not having Congress buy in, and not having us have skin in the game.”
“We have to make sure our adversaries, our allies, and most importantly, our troops, know we speak with one voice,” he added.
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