by Jacob Wallace
Several senators on the Senate Committee on Foreign Relations expressed interest in opening debate in Congress on a new Authorization for the Use of Military Force (AUMF) for the first time since 2002. Their comments occurred during a special hearing attended by Secretary of State Rex Tillerson and Secretary of Defense James Mattis on Monday evening.
In opening comments, Senator Ben Cardin, ranking member of the committee, expressed concern about the ongoing use of original authorizations authored in 2001 and 2002. Those authorizations were made to authorize retaliation for the terrorist attacks on Sept. 11 and to authorize the ensuing war in Iraq, respectively.
“This is one of the most important topics the United States Senate and this committee could ever consider,” said Cardin, “under what circumstances and legal authorities should the United States send men and women into war.”
Secretaries Tillerson and Mattis were ambivalent about a new authorization from Congress. Both wanted any new authorization to omit geographical or time constraints so that US military forces could pursue enemies related to terrorism wherever they might be.
“Secretary Mattis and I and the rest of the administration are completely aligned on this issue,” said Tillerson.
Much of the debate on Monday centered around which branches of government control which aspects of war. Since the 2001 and 2002 AUMFs, the executive branch has had the ability to engage in unending war abroad against hostile agents deemed to be affiliated with al Qaeda. However, the definition of affiliation with al Qaeda has been interpreted very broadly.
“When we were attacked on September 11th,” said Cardin, “I’m not sure Congress envisioned we would have the potential of ground troops in North Africa in combat missions.”
Under current regulations, the President must submit to Congress every sixty days a list of the countries in which the United States currently has troops stationed. The list most recently included seventeen countries, including Niger, where four US soldiers were killed earlier this month.
“I don’t personally believe the 2001 authorization applies to this situation” said Senator Ron Johnson, “but by precedent, it does.”
While many of the senators believe that creating a new AUMF would create clearer military objectives, Secretary Mattis expressed concern about any changes made to the status quo.
“There are some lawyers who will say it’s good to hold onto what you have,” said Mattis. “Even if you pass a new [AUMF], it perhaps changes it in some way.
Senator Flake argued that debate about the United States’ role in wars abroad needed to happen regularly if Congress was to exercise its oversight over war, and that Congress was abdicating its responsibility.
“We haven’t weighed in, we haven’t said our piece, we haven’t voted,” said Flake. “We need to makesure that our adversaries and our troops know that we speak with one voice.”
Flake also pointed out that “not one member” of the Senate Committee on Foreign Relations was a member of the Senate the last time an AUMF was passed.
“We ought to aspire to be more than a feedback loop,” said Flake. “Article I is about more than that.”
In May, Senators Tim Kaine and Flake introduced a new version of the AUMF that contained updated language to specifically declare war on ISIS, al Qaeda, and Taliban affiliated actors. The act also repeals the two prior AUMFs, mandates that the executive branch notify Congress about any countries where military action is being taken, and allows Congress to have oversight over who can be considered to be “associated” with the terrorist groups, a power that Congress previously did not have.
The administration has raised objections over the new role that Kaine and Flake’s AUMF creates, arguing it could create a cloud of political uncertainty that would hang over military operations.
“Generally speaking you don’t tell the enemy in advance what you’re not going to do, that’s not wise,” said Mattis.
Still, Kaine argued, Congress reauthorizes the NDAA and Patriot Act regularly, and Mattis conceded that neither of those acts has significantly affected the military.
“I don’t understand the objection other than ‘we don’t want congressional oversight,’” said Kaine. “This is a constitutional power. We shouldn’t be putting our troops into harm’s way and as Congress standing back.”
Several senators expressed concern about the potential of a perpetual war. When the annual National Defense Authorization Act was debated in the Senate in September, Senator Rand Paul submitted an amendment seeking to repeal the 2001 and 2002 AUMFs, but his amendment was rejected. Paul spoke again at length about the dangers of open-ended conflict at Monday’s hearing.
“Our only chance of preventing war is not to initiate the war,” said Paul.
Paul also expressed interest in reauthorizing an AUMF, but cautioned that the current draft submitted by Flake and Kaine gave the executive branch still too much power to bring war wherever the ideology of “radical Islam” was present.
“If we want to fix it, we should fix it,” said Paul. “We complain administrations want to take [Article] II power, we should reassert our power.”