On 16
April 2018, the Chairman of the Senate Foreign Relations Committee (Senator Bob
Corker (R-Tennessee) introduced a draft Authorization of the Use of Military
Force (AUMF), “To authorize the use of military force against the Taleban, Al
Qaida, the Islamic State in Iraq and Syria, and designated associated forces,
and to provide an updated, transparent, and sustainable statutory basis for
counter-terrorism operations.”
Current
US counter-terrorist military operations are conducted under the 2001 and 2002
AUMF’s and Presidential authority granted under Article II of the US
Constitution. The new AUMF is intended
to replace the two existing authorizations.
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 act of international terrorism against the United States by such nations, organizations or persons.” Over the years, a growing body of opinion has contended that while the 2001 AUMF authorized military action against Al Qaeda (AQ), the Taleban, and others associated with the September 11 attacks against the US, it did not cover action against: AQ-I (which did not exist until 2004) and became IS, or any other actors that have emerged.
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 act of international terrorism against the United States by such nations, organizations or persons.” Over the years, a growing body of opinion has contended that while the 2001 AUMF authorized military action against Al Qaeda (AQ), the Taleban, and others associated with the September 11 attacks against the US, it did not cover action against: AQ-I (which did not exist until 2004) and became IS, or any other actors that have emerged.
The 2002, 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 (the 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 either to or from Iraq, including AQ-I, and then IS.
Over the
years, some members of Congress have argued that the AUMF’s should be replaced,
but without success.
The Department
of Defense position has been consistent.
Any new AUMF should satisfy three conditions:
- All military options should be authorized;
- It cannot be time-restricted; and,
- It cannot be geographically-constrained.
- It does not restrict military options.
- The authorization is for: the Taleban, Al Qaida, the Islamic State of Iraq and Syria, and associated forces. The designated “associated forces” are: Al Qaida in the Arabian Peninsula, Al Shabaab, Al Qaida in Syria (including Al Nusrah), the Haqqani Network, and Al Qaida in the Islamic Maghreb. Additions to the “associated forces” can be notified to Congress for consideration.
- Military force is authorized in Afghanistan, Iraq, Syria, Somalia, Yemen and Libya. Military force used elsewhere should be notified to Congress within 48 hours of execution with a report detailing its necessity. Comment: The overt authorization by Congress for the use of military force in the designated nations may have negative diplomatic implications if approved.
- A Presidential report is required, by Congress on 20 January 2022, and every fourth year subsequently, with a proposal to repeal, modify, or leave in place the resolution. Comment: As 20 January is Presidential Inauguration Day it is likely that this date will have to change.
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