Pass the Corker-Kaine AUMF – By Dan Mahaffee & Michael Stecher (defenseone.com) / May 11 2018
Its critics misunderstand the 17-year evolution of the fight against violent extremist groups, and risk letting the perfect be the enemy of the good.
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. (Pub. L. 107-40, Sept. 18, 2001)
With these sixty words—the 2001 Authorization for the Use of Military Force—Congress granted the president broad powers to conduct the global war on terror. While originally intended to approve combat operations against Al Qaeda and the Taliban in Afghanistan, the AUMF has been repeatedly reinterpreted to cover a constellation of far-flung groups from Somalia and Niger to the Philippines. In each of these cases there is a compelling reason for military action, but as the president engages in persistent military operations without effective oversight, lawmakers abrogate their responsibility for war powers—an authority granted to Congress in the Constitution to ensure that the people’s representatives have a say in the use of force. After years of inaction, however, the Senate is at last seriously debating an update to the 17-year-old authorization. This legislation is imperfect, but lawmakers should not let this moment pass.
The 2001 AUMF’s main flaws are its squishy lack of definitions about targets and duration. The Bush, Obama, and Trump administrations have all argued that the president has broad authority to designate new groups as related to the 9/11 attacks, most notably the Islamic State, which was formed years later and had a public split with Al Qaeda in 2014. Even more concerning is the fact that there is no requirement in the 2001 AUMF that designations of new groups targeted by the president be made public. Last year, the deaths of U.S. troops in Niger provoked widespread surprise in Washington, where there had been little discussion of the nature and goals of the deployment. Whether or not one believes in the merits of any particular operation, citizens of a democratic state deserve public debate about the future of these conflicts.
The updated AUMF proposed by Sens. Bob Corker, R-Tenn., and Tim Kaine, D-Va., seeks to address some of these concerns by updating the legal framework for the global fight against violent extremist groups in important ways.
In place of the original AUMF’s authorization of force against “nations, organizations, or persons” involved in the 2001 attacks, The Corker-Kaine bill specifies the authorized targets of American military force as the Taliban, Al Qaeda, and ISIS, plus five enumerated “associated forces” that are active across North and East Africa, the Middle East, and Afghanistan and Pakistan. Beyond these specific groups, the bill says new groups can be named associated forces, provided that the president inform Congress within 48 hours of the designation. This is an improvement over current practice, even though it does not rise to the level of a full public debate.
The other key improvement is a requirement that the president submit to Congress a quadrennial report on the use of military force authorized by the Corker-Kaine AUMF and the requirement for a vote by Congress to repeal or modify the bill. Some critics argue that a new AUMF needs a sundown provision: a clause that forces Congress to act to reauthorize it periodically. In recent years, however, Congress has struggled to pass “must-pass” bills like this, so Senators Corker and Kaine have probably made the right choice in not adding another showdown for a future Congress.
Other critics of the Corker-Kaine AUMF, including in the pages of Defense One and the Editorial Board of the New York Times, have argued that it would increase the powers of the president. This rests on a misunderstanding of the evolution of the fight against violent extremist groups since the passage of the 2001 AUMF. The critics argue that the president could name an Iranian-backed terrorist group as an associated force and use this as a pretext to conduct military operations against Iran. The text of the bill, however, specifically says that the president can only name co-belligerents of Al Qaeda, the Taliban, or ISIS as associated forces and—despite its myriad sins—there is no evidence of an Iranian relationship with these groups.
Although less widely discussed, the AUMF under consideration also replaces the 2002 AUMF, which broadly authorized military action to “defend the national security of the United States against the continuing threat posed by Iraq,” a definition that has already been stretched to include the counter-ISIS campaign. Armed Iranian-backed forces are also active in Iraq, so it is plausible that the president could use the 2002 AUMF as a legal framework for a conflict with Iran. The Corker-Kaine bill would make this kind of “justification-shopping” harder by eliminating that loophole and putting new constraints on how far the president can stretch existing war powers.
It is hard to imagine that the drafters of the 2001 and 2002 AUMFs thought that they were crafting a legal justification for a war that would last decades and span continents. Yet, some Members of Congress—from both parties and both houses—would prefer to play political Monday morning quarterback with the president’s national security decisions without taking steps that might “tie the hands” of the president and check executive power. This allows legislators to appear involved on defense issues without making the difficult choices that a robust debate and oversight process would require.
In Washington, the perfect is too often the enemy of the good, and Congress will not regain the military oversight it has ceded over the years in one fell swoop. But Congress is a coequal branch of government with an important role to play in foreign relations and national security; it fails the American people when it chooses to merely appear to exercise it. Just as Congress passed the War Powers Resolution in 1973 to constrain the presidency after the Vietnam War, Congress needs take this opportunity to begin to restore its oversight function for the use of military force.
https://www.defenseone.com/ideas/2018/05/pass-corker-kaine-aumf/148155/?oref=d-river
