Debating a new Authorisation for the Use of Military Force (AUMF)

The deaths of four US soldiers in Niger on 04 Oct 17 has reignited the debate over replacing the 2001 AUMF that 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 act of international terrorism against the United States by such nations, organizations, or persons." 

Over the years a growing body of opinion contended that while the 2001 AUMF authorized military action against Al Qaida (AQ), the Taliban and others associated with the 11 September 2001 attacks against the US, it did not cover action against: AQ-I (which did not exist until 2004) and became ISIS, or any other actors that have emerged.  In 2002, the Iraq-specific AUMF gave President Bush authority to “defend the national security of the United States against the continuing threat posed by Iraq” (implying the state of Iraq (use of the word “by”), as opposed to non-state actors operating in and from Iraq.  However, the White House always countered that both gave the necessary authorization for global counter-terrorism operations.

However, on 20 Jan 15, in his State of the Union address, President Obama appeared to undermine this position and said: “And tonight, I call on Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against the Islamic State of Iraq and the Levant (ISIL).”

In an interview with Gen Dempsey on 22 Jan 15 (then Chairman of the Joint Chiefs of Staff), he endorsed the passing of a new AUMF but made three important points

·         “.. all options should be on the table, and then we can debate whether we want to use them.  But the authorization should be there.”

·         “It shouldn’t constrain activities geographically, because IS knows no boundaries [and] doesn’t recognize any boundaries – in fact it’s their intention to erase all boundaries to their benefit.”

·         “Constraints on time, or a “sunset clause”, are not necessary.  “I think the nation should speak of its intent to confront this radical, ideological, barbaric group and leave that open until we can deal with it.”

However, on 28 Jan 15, Rep. Adam Schiff (D-CA), the Ranking Member on the House Intelligence Committee, introduced a draft AUMF that:

• ·         Limited authority to the territory of Iraq and Syria.
• ·         Did not give authority for the deployment of ground forces in a combat role.
• ·         Terminated the authority after three years.

The 2001 AUMF was not replaced.

Alongside Secretary of State Tillerson, in testimony before the Senate Foreign Relation Committee on 29 Oct 17, Secretary of Defence Mattis, in relation to a new AUMF, said:

• ·         “[The President has] authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
• ·         “it lies firmly within any president’s constitutional authority and responsibility as the elected commander-in-chief to designate who presents a threat to our country.”
• ·         “Though a statement of continued Congressional support would be welcome, a new AUMF is not legally required to address the continuing threat posed by al-Qaida, the Taliban and ISIS.” 

Similar to Gen Dunford’s comments in 2015, Mattis believes that:

                                

• ·         The two AUMFs should not be repealed and that they give the authority for operations against al-Qaida, the Taliban, and ISIS.
•            Second, that a new AUMF cannot be time-restricted, “We cannot put a firm timeline on conflict against an adaptive enemy who would hope that we haven’t the will to fight as long as necessary,” “… we are more likely to end this fight sooner if we don’t tell our adversary the day we intend to stop fighting.”

·        Finally, that a new AUMF cannot be geographically constrained, “This is a fight against a transnational enemy, one that does not respect international borders and does not place geographic limits on their areas of operations. So, necessarily, to defend our country, we must be prepared to swiftly engage this global enemy in conjunction with our allies and partners.”

Swift, unambiguous bi-partisan support for a new AUMF that is not constrained by time, space or means is likely to:

• ·         Demonstrate to the US public, allies, partners, neutrals and adversaries that the US is united in its desired outcome; and,
• ·         Give support to all DoD and intelligence agency partners involved.

However, an extended debate resulting in a constraining, ambiguous AUMF, or no replacement at all, is likely to:

• ·         Undermine confidence from the US public, allies and partners;
• ·         Undermine morale in the DoD and its intelligence partners; and,
• ·         Give confidence to the adversaries, and be exploited by them for further recruitment and support.

Second-order affects should also be considered, for example: how would the North Korean or Iranian regimes perceive the process and outcome, and what could they do to exploit it.

Let’s see.