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October 27, 2017

AUMF Hearing Offers Opportunity to Reexamine War Authorization

Next Monday Secretary of Defense James Mattis and Secretary of State Rex Tillerson will testify before the Senate Committee on Foreign Relations about authorizations for the use of military force (AUMFs).

The post-9/11 AUMF passed in 2001 authorized the war against those responsible for the 9/11 attacks and those who harbored them—namely al Qaeda and the Taliban—and the 2002 Iraq AUMF was passed to take down the Saddam Hussein regime in Iraq. These two laws are used to justify employing wartime powers against an array of terrorist organizations in at least seven different countries around the world. Some of these groups, like ISIS and al Shabaab, took no part in the 9/11 attacks and did not even exist when the 2001 AUMF was passed.

The recent deaths of four American soldiers in Niger is the latest incident that has led members of Congress and the public to question just how broadly existing AUMFs are being used to justify using military force around the world.

A host of lawmakers, officials, and experts have proposed their own AUMF updates (which we analyze here). Monday’s hearing will likely address how existing AUMFs are being used, proposals for a new AUMF, and recent efforts to repeal the 2001 AUMF.

As this debate gets under way, Congress should ensure that any new AUMF authorizing military force against terrorist organizations cannot be used to justify more unbounded or perpetual wars. Wartime rules were designed for the battlefield. Off the battlefield, the use of wartime powers to kill and detain threatens fundamental human rights protections against arbitrary killing and detention without charge or trial.  

To keep wartime powers where they belong and prevent Congress from inadvertently authorizing a second “Global War on Terror,” any new AUMF should satisfy the following bipartisan checklist:

  • Clearly define the mission objective and the enemy
  • Include robust reporting and transparency requirements to keep both Congress and the public informed
  • Require compliance with U.S obligations under international law
  • Clarify that the authorization is the sole source of statutory authority to use force against ISIS to prevent confusion or overlap
  • Set a sunset date for both the new AUMF and for the 2001 AUMF to ensure continued congressional support for the use of force as the conflict evolves.
  • Repeal the 2002 AUMF

It’s likely that at Monday’s hearing Secretaries Mattis and Tillerson will reiterate the administration’s recently articulated position that existing AUMFs provide it with sufficient legal authority for continued military operations against terrorist organizations. Hopefully the hearing will also emphasize that any new AUMF should properly balance the need to use military force where appropriate with adequate safeguards and limits.