Wednesday, September 3, 2014

Authorizing Force for Future Military Operations

This article first appeared on The Epoch Times    

     The recent successes of the Islamic State in capturing territory in Iraq and Syria combined with the brutal execution of two American journalists has thrust American furor for the group to new levels.  Many Americans, despite opposing a broad ground offensive, generally approve of the limited air campaign initiated by the Obama administration.  Now the administration is mulling overt military action in Syria, a sovereign country, which would require congressional authorization. Bleak assessments by top military and defense officials within the administration suggest that the militant group must be confronted within their strongholds in Syria in order to wage any serious offense that strategically defeats them. 

     Aside from the politics of a vote authorizing force, many experts have called for members of Congress to reexamine the 2001 Authorization for Use of Military Force (AUMF).  The president in a speech at the National Defense University in 2013 suggested that he would like to see the AUMF reformed.  The AUMF, passed in the wake of the terror attacks on 9/11, authorized the Bush administration to wage a major offensive in Afghanistan in retaliation for the attacks.  Since its passing, the AUMF has served as the Obama administration's key counterterrorism authority and has been expanded to cover previously unperceived groups in 2001.  

     Core al-Qaeda has become much less influential since the War on Terror began in 2001, which has allowed several splinter and associate groups to sprout and flourish in certain areas.  The 2001 AUMF states:
"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."       
The argument several scholars have made against the current administration's reliance on this sixty word authorization for counterterrorism is that several terrorist groups today did not exist in 2001 and therefore would or should not fall under its umbrella.  The administration has broadened their interpretation of the AUMF to include "associate forces" of (core) al-Qaeda and the Taliban - both of whom the 2001 AUMF were written to address - in the sense of the co-belligerency, which, "[a]pplied to al-Qaeda, co-belligerency requires an organization to have 'entered the fight alongside al-Qaeda' and to work with 'al-Qaeda in hostilities against the United States or its coalition partners,'" according to a recent report on repealing the AUMF from the National Security Network, a Washington think tank.  As opposed to the broad interpretation of a one size fits all authorization expanded to "associate forces" or co-belligerents today, the National Security Network report stated, "During World War II, the United States issued multiple declarations, one each for Germany’s co-belligerents."

     Should the AUMF be repealed, revised, or replaced?  What should a new authorization look like?  How can Congress check the president from utilizing unilateral power to deploy military force aside from limited Article II self-defense authority to protect from imminent threats?  One method suggested in a paper published by Stanford University's Hoover Institution would be for Congress to pass legislation reaffirming the president's Article II powers.  The authors of the Hoover paper wrote, "presidential action based on statutory authority has more political and legal legitimacy than action based on Article II alone."  However, as the authors noted, such legislation could broaden the president's powers even greater and initiate an open-ended war given the ambiguity of whom Congress would be authorizing force against.   

     Other approaches regarding a new AUMF could include geographic limits placed on the administration by Congress.  Some scholars believe that Congress should pass a legislation or a resolution that would only permit the Executive to use force in a particular geographic area.  The 2001 AUMF, authorized force in Afghanistan as a response to 9/11 and against specific targets located in Afghanistan that attacked the United States, despite not explicitly naming any region.  The 2001 language has since been used to target militants in Yemen, Pakistan, and Somalia to name a few.  The authors of the National Security Network report stated, "Geographic limits in conjunction with a list of named enemy organizations would provide another means to incrementally ending armed conflict under the AUMF. As military counterterrorism operations to engage named enemy organizations become no longer necessary in a geographic area, then policymakers could remove that area by amending the law."  However, the authors point to various criticisms regarding such an approach because many terrorist entities operate across internationally recognized borders - think the Islamic State.  

     The authors of the Hoover paper also suggest the notion of Congress defining action based on geographic areas or more specifically, a listing of groups that may be targeted.  According the their report, Congress could set "forth general statutory criteria for presidential uses of force against new terrorist threats but requires the executive branch, through a robust administrative process, to identify particular groups that are covered by that authorization of force," similar to the process of designating Foreign Terrorist Organizations.  Model legislative language provided by the Hoover paper could authorize "'an organization with sufficient capability and planning that it presents an imminent threat to the United States.' Or it might authorize force against 'any group or person that has committed a belligerent act against the U.S. or imminently threatens to do so,'" which would also clearly define terms such as "imminent" and "belligerent act." 

     A third report concerning AUMF reform authored by Steve Vladeck and Jennifer Daskal, both law professors at American University, disputes the method of naming certain groups by Congress in which the Executive would be authorized to strike.  Rather, they suggest that the Executive should approach Congress for authorization on a case-by-case basis as new threats or organizations arise.  "If new groups emerge that pose a threat sufficient to warrant independent use-of-force authority, the government should affirmatively and publicly identify them and obtain from Congress specific authorization to use force against those groups," stated Vladeck and Daskal.  Furthermore, Vladeck and Daskal oppose a new AUMF on the grounds that such an open-ended authorization is unnecessary because the president does not need authorization to prevent imminent or armed attacks.

     In addition to strategies previously discussed, the National Security Network suggests an incremental approach for repealing the AUMF in which the authorization is capped and rolled back.  Their cap and roll back approach champions a limited future role, which, "would immediately mitigate the risk of perpetual war while keeping in place more limited war authority for the time being to allow continued operations against the Taliban, al-Qaeda, and associated forces."  To piggy back on this limited strategy going forward, the National Security Network report builds on a concept then Defense Department General Counsel Jeh Johnson (who is now Secretary of Homeland Security) outlined - a theoretical "tipping point."  "This concept holds that the conflict against al-Qaeda should end when the organization has been degraded to the point of no longer being capable of strategic attack against the United States," the report stated.

    Additional issues to consider regarding repealing, reforming, or revising the AUMF are detention authority and targeted killings.  The detainees at Guantanamo Bay are held under the authority of the AUMF, but the fate of the detainees could be in question when hostilities in Afghanistan end, thereby concluding the 2001 AUMF and its detention authority.  The president has also relied on the AUMF for his targeted killing tactic in taking dangerous enemies off the battlefield.  Any efforts going forward regarding a potential new AUMF may have to consider these two additional issues.   

     There is no question that the threats the United States face today are vastly different from those in 2001.  Many experts believe that the United States is still operating on outdated legal frameworks that do not represent the conflicts currently facing the country.  While the president is the commander-in-chief, Congress should provide the president with the necessary tools to defend the nation because the Constitution leaves war making power to the legislature.  The idea of framing a new counterterrorism authority seems toxic and complicated given the current political climate, the dire and imminent situation in Iraq and Syria, and the closing midterm elections, therefore, there will likely and regrettably be no change in the foreseeable future.   

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