US Authorization of Military Force

The deaths of four US soldiers in Niger on 04 Oct 17 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, organization, 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 (that 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, since then it has been argued that it authorizes actions to threats to or from Iraq, including AQ-I and then ISIS.

Section 1264 of the 2018 National Defense Authorization Act (codified at 50 USC 1549) included a new requirement of President Trump’s administration to provide, by 12 March 2018, with a “Report on the Legal and Policy Frameworks Guiding the US Use of Military Force and Related National Security Operations”.  The report was delivered to Congress on time.  Current US military operations are authorized by the 2001 and 2002 AUMF’s and Presidential authority granted by Article II of the US Constitution.

Over the years, some members of Congress have argued that the AUMF’s should be replaced, though without success.

The Department of Defense position has been consistent:

In an interview with Gen Dempsey on 22 Jan 15 (then Chairman of the Joint Chiefs of Staff), 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.”

Alongside then 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:

·       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.”

·       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.”

It is too early to say whether this new requirement will lead to further calls for replacing the AUMF’s, but is highly likely the Administration agrees with the DoD’s position.