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National Security Situation: Current operations in the Global War On Terror are carried out under the authority granted by 2001 Authorization for the Use of Military Force (AUMF). Given changes in the global security environment, there is currently debate over updating the AUMF.
Date Originally Written: May 26, 2017.
Date Originally Published: June 22, 2017.
Author and / or Article Point of View: Author is writing from the perspective of a senior policy advisor to member of Congress sitting on either the House or Senate Armed Services Committees.
Background: Shortly following the September 11th terrorist attacks, Congress passed Public Law 107-40, the 2001 Authorization for the Use of Military Force[1]. The 2001 AUMF states, “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…” The 2001 AUMF is currently used as the legal authority for counterterrorism operations in multiple countries, against multiple organizations, including the Islamic State.
Significance: Clearly defining ends, ways, means, and costs are central to the military planning process. This analysis should extend and be central to the policy planning process as well. Relying on the 2001 AUMF for the campaign against the Islamic State raises questions about whether statutory authority does, or should, to extend to this campaign. Revisiting force authorization statutes will help mitigate the risk of perpetual war, simplify legal authorities, and strengthen congressional oversight[2]. Terrorism is a tactic, and thus cannot be defeated. Those who engage in terrorism can be targeted and the environmental factors leading to terrorism can be addressed. Less than 25% of the current members of Congress held office when the 2001 AUMF passed[3]. Revisiting the 2001 AUMF allows current policy makers the opportunity to reexamine the scope and extent of current counterterrorism operations.
Option #1: Amend the 2001 AUMF to restrict Presidential authorities to use force.
Risk: Efforts to restrict potential overreach of Presidential authorities may also restrict the flexibility of military responses to the emerging threats and capabilities of future terrorist organizations. Restriction would relegate presidential authorities to those granted by Article II of the Constitution and international self-defense laws, such as Article 51 of the UN Charter. This may initially restrict operational flexibility, as mentioned before. However, this could also lead to an expansion of Article II powers as counterterrorism operations continue under the premise of Article II authorities.
Gain: Option #1 provides Congress with a check on the President’s authority to use military force in an extended and expanded Global War on Terror. This option also incentivizes non-kinetic counterterrorism efforts. These efforts include targeting terrorism financing, economic development, information operations, and judicial counterterrorism strategies. Restricted authorities could limit the geographical areas of operations. They could also restrict targeting authorities to a list of named enemy organizations[4].
Option #2: Amend 2001 AUMF to update or expand Presidential authorities to use force.
Risk: Updating the 2001 AUMF to expand Presidential authorities to use force may lead to excessive use of military force. It could also lead to further legitimizing endless war.
Gain: An updated and expanded AUMF could clearly define uses of technologies not widely available in 2001, such as armed unmanned aerial vehicles and cyberwarfare. Option #2 could also enable the targeting of terrorist groups unaffiliated with Al Qaeda that pose a threat to the United States.
Other Comments: None.
Recommendation: None.
Endnotes:
[1] The Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001)
[2] Wittes, B. (2014, November 11). A Response to Steve Vladeck on the AUMF Principles. Retrieved from https://lawfareblog.com/response-steve-vladeck-aumf-principles
[3] Brandon, H. (2017, May 05). An ISIS AUMF: Where We Are Now, Where to Go Next, and Why It’s So Important to Get It Right. Retrieved from https://www.justsecurity.org/40549/isis-aumf-now-next-important/
[4] Popplin, C. (2015, June 09). National Security Network Proposes Plan to Repeal AUMF. Retrieved from https://lawfareblog.com/national-security-network-proposes-plan-repeal-aumf