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The AUMF and America’s Forever War – Council on Foreign Relations (blog)






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by Micah Zenko
May 19, 2013

See below for the most important and alarming sections from
Thursday’s Senate Armed Services Hearing with senior civilian
and military officials on the Pentagon’s interpretation of
legal authorities for conducting counterterrorism operations.
The hearing, “The Law of Armed Conflict, and the Use
of Military Force, and the 2001 Authorization for Use of
Military Force,” contained several revelations these Pentagon
officials that suggest that President Obama’s repeated claim
that “the tide of war is receding” is not the operative
guidance for the U.S. military. The four witnesses
were
: Michael Sheehan, Assistant Secretary of
Defense for Special Operations and Low-Intensity Conflict;
Acting Defense General Counsel Robert Taylor; Maj. Gen. Michael
Nagata, Deputy Director for Special
Operations/Counterterrorism, J-37, Joint Staff; Brig. Gen.
Richard Gross, Legal Counsel, Chairman of the Joint Chiefs of
Staff.

MR. TAYLOR:  A group is an associated force if,
first, it is an organized armed group that has entered the
fight alongside al-Qaida, and second, it is a co- belligerent
with al-Qaida in hostilities against the United States or its
coalition partners. Individuals who are part of this recognized
enemy may be lawful military targets.

We take extraordinary care to ensure that all military
operations, not just the exceptional cases of those against
U.S. citizens, are conducted in a manner consistent with
well-established Law of Armed Conflict principles, including
humanity, which forbids the unnecessary infliction of
suffering, injury or destruction, distinction, which requires
that only lawful targets, such as combatants and other military
objectives, may be intentionally targeted, military necessity,
which requires that the use of military force, including all
measures needed to defeat the enemy as quickly and efficiently
as possible, which are not themselves forbidden by the law of
war, be directed at accomplishing a valid military purpose, and
proportionality, which requires that the anticipated collateral
damage of an attack not be excessive in relation to the
anticipated concrete and direct military advantage from the
attack. These well-established rules that govern the use of
force in armed conflict apply regardless of the type of weapon
system used.

From a legal standpoint, the use of remotely piloted aircraft
for lethal operations against identified individuals presents
the same issues as similar operations using manned aircraft.
However, advance precision technology gives us a greater
ability to observe and wait until the enemy is away from
innocent civilians before launching a strike, and thus
minimizes the risk to innocent civilians. Before military force
is used against members of al-Qaida, the Taliban and associated
forces, there is a robust review process which includes
rigorous safeguards to protect innocent civilians.

MR. SHEEHAN: At this point, we’re comfortable with the AUMF as
it is currently structured. Right now it does not inhibit us
from prosecuting the war against al-Qaida and its
affiliates.  If we were to find a group or organization
that was imminent — that was targeting the U.S., first of all,
we would have other authorities to deal with that situation.

I was in the government prior to 9/11 when we conducted strikes
against groups before we had the AUMF specific post-9/11
authority. So we could use other authorities to take on those
types of organizations. But for right now, for our war against
al-Qaida, the Taliban and other — their affiliates, the AUMF
serves its purpose.

SEN. LEVIN: Now, under the definition of enemy, do you
agree that mere sympathy with al-Qaida is not sufficient to be
associated — to be an associated force for purposes of the
AUMF?

MR. SHEEHAN: Yes, Senator. Sympathy is not enough as Jeh
Johnson and others have mentioned in public. It has to be an
organized group and that group has to be in co-belligerent
status with al-Qaida operating against the U.S.

SEN. LEVIN: Is there any good reason why both Congress and
the public should not be informed of which organizations and
entities the administration has determined to be
co-belligerents of al-Qaida and to promptly be informed of any
additions or deletions from that list?

MR. SHEEHAN: Senator, I think that the appropriate role for the
Congress is in its oversight regarding the designation of
groups. A lot of these groups, as you know, Senator, have very
murky membership and they also have very murky alliances and
shifting alliances and they change their name and they lie and
obfuscate their activities. So I think it would be difficult
for the Congress to get involved in trying to track the
designation of which are the affiliate forces.

We know when we evaluate these forces what they’re up to. And
we make that determination based on their co-belligerent status
with al- Qaida and make our targeting decisions based on that
criteria rather than on the shifting nature of different groups
and their affiliations.

SEN. LEVIN: Is there a list now, is there an existing list
of groups that are affiliated with al-Qaida?

MR. SHEEHAN: Senator, I’m not sure there is a list per se. I’m
very familiar with the organizations that we do consider right
now are an affiliate of al-Qaida and I could provide you that
list.

SEN. LEVIN: Would you give us that list?

MR. SHEEHAN: Yes, sir, we can do that.

SENATOR MCCAIN:   What this hearing is
about is about a resolution that was passed now coming up on 12
years ago. And I think it’s important for all of my colleagues
to read that again, which says the president is authorized to
use all necessary and appropriate force against those nations,
organizations or persons he determines planned, authorizes,
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 or organizations.

This authorization was about those who planned and orchestrated
the attacks of 2011. Here we are 12 years later and you and the
secretary come before us and tell us that you don’t think it
needs to be updated. Well, clearly, it does.

And I would refer to you this morning’s Washington Post
editorial, revising the terms of war, the authorization to use
force against al-Qaida should be updated, not discarded.

And because it’s been so long and because of the changing
nature, which I think, General Nagata, you would agree the
nature of this conflict has changed dramatically, spread
throughout Northern Africa, throughout the Maghreb, it’s
penetrating into other nations, all throughout the Middle East,
the situation is dramatically changed. So free to come here and
say, well, we don’t need to change it, I think, or revise or
update it, I think, is, well, disturbing.

And that’s why we have people like Senator Dick Durbin last
month, one of the highly respected individuals, I quote Senator
Durbin, “None of us, not one who voted for the AUMF could have
envisioned we are about to give future presidents the authority
to fight terrorism as far-flung as Yemen and Somalia.”

Mr. Taylor, in your legal opinion, could the 2001 AUMF be read
to authorize lethal force against al-Qaida’s associated forces
in additional countries where they’re now present, such as
Somalia, Libya and Syria?

MR. TAYLOR: As I indicated, there are — we must comply with
domestic law –

SEN. MCCAIN: I think it’s a pretty straightforward question,
Mr. Taylor. Do you want me to repeat it?

MR. TAYLOR: On the domestic law side, yes, sir.

SEN. MCCAIN: You believe that the 2001 AUMF authorizes lethal
force against al-Qaida associated forces in Somalia, Libya and
Syria, so we can expect drone strikes into Syria if we find
al-Qaida there?

MR. TAYLOR: On the domestic law side, sir, I said if — you
know, I hate to speculate on a hypothetical, but –

SEN. MCCAIN: Well, the president, in your view, the president
has the authority to do that.

MR. TAYLOR: In my view, we are — the AUMF authorizes us to be
at war with al-Qaida, the organization behind the 2001
September 11 attacks, and that organization continues and it
has associated forces, forces that have joined with that
organization. And yes, sir, we are authorized to attack
associated — those who have chosen to associate with that
organization.

SEN. MCCAIN: You rightly say in your statement that the 2012
NDAA reaffirmed the AUMF with respect to the authority to
detain al- Qaida and Taliban and associated forces. Is the
authority to detain the same as the authority to kill, because
that was not in the defense bill?

MR. TAYLOR: It’s related; it is not the same.

SEN. MCCAIN: Wouldn’t it be helpful to the Department of
Defense and the American people if we updated the AUMF to make
if more explicitly consistent with the realities today, which
are dramatically different than they were on that fateful day
in New York and Washington?

MR. SHEEHAN: Senator, I think there’s a good case to be made
that we should review this as the war goes on, and we have
reviewed it. And as of right now, I believe it suits us very
well. And if there comes an opportunity where we need other
authorities, we should come forward for those.  I would
like to add, though, the al-Qaida that attacked us on September
11th, 2001 was an al-Qaida that previously attacked us from
East Africa, from Yemen –

….

SEN. MCCAIN: We are now killing people in the Haqqani Network,
right? Is that correct, Mr. Secretary?  The reason why I
bring that up, we didn’t even designate the Haqqani Network as
a terrorist organization until 2012. And there are published
reports which are not as a result of classified briefings that
I have had, that we have killed people that their association
or direct association with al-Qaida is tenuous. In fact,
there’s one story that we killed somebody in return for the
Pakistanis to kill somebody.

So as you stated, Congress is briefed from time to time, and I
appreciate that. But the fact is that this authority, which I
just read to you, has grown way out of proportions and is no
longer applicable to the conditions that prevailed that
motivated the United States Congress to pass the Authorization
for the Use of Military Force that we did in 2001.

So I guess I must say I don’t blame you, because basically
you’ve carte blanche as to what you are doing throughout the
world. And we believe that it needs to be — it doesn’t need to
be repealed, but it’s hard for me to understand why you would
oppose a revision of the Authorization to Use Military Force in
light of the dramatically changed landscape that we have in
this war on Muslim extremism and al-Qaida and others. And it
needs to be done, and I hope that this committee will address
it, either in a separate fashion or as part of the annual
National Defense Authorization Act.

GEN. NAGATA: As I track the orders and direction the secretary
has given his combatant commanders, I’ve never encountered a
moment where they didn’t have sufficient legal authority to
implement those orders.

GEN. GROSS: I would agree with General Nagata. I mean, from
what I’ve seen in my military practice, the current AUMF has
been adequate to meet the enemy we’ve seen to date so far.

SEN. UDALL: If the negotiated settlement between the government
of Afghanistan and the Taliban were to be signed, would the
AUMF still apply to the Taliban? In other words, could we be in
a situation in which Afghanistan is no longer at war against
Mullah Omar’s Taliban, but we still are? Or if we also accept
such a negotiated settlement, could we be in a situation in
which we are at war with al-Qaida, but not the Taliban?

MR. SHEEHAN: Senator, again, hypothetical, but I would envision
— if the question you asked, could that be the case, and the
answer would be yes, it could be the case.

MR. SHEEHAN: Senator, I think the AUMF currently structured
works very well for us. So I guess we would be concerned that
any change might restrict our combatant commanders from
conducting their operations they have in the past. So right now
we’re comfortable. And I think Senator Inhofe said if it ain’t
broke, don’t fix it. I would subscribe to that policy.

SEN. GRAHAM: Do you agree with me the war against radical Islam
or terror, or whatever description you like to provide, will go
on after the second term of President Obama?

MR. SHEEHAN: Senator, in my judgment, this is going to go on
for quite a while, and yes, beyond the second term of the
president.

SEN. GRAHAM: And beyond this term of Congress?

MR. SHEEHAN: Yes, sir. I think it’s at least 10 to 20 years.

SEN. GRAHAM: OK. Could we send military members into Yemen to
strike against one of these organizations? Does the president
have that authority to put boots on the ground in Yemen?

MR. TAYLOR: As I mentioned before, there’s domestic authority
and international law authority. At the moment, the basis for
putting boots on the ground in Yemen, we respect the
sovereignty of Yemen and it would –

SEN. GRAHAM: I’m not talking about that. I’m talking about does
he have the legal authority under our law to do that.

MR. TAYLOR: Under domestic authority, he would have that
authority.

SEN. GRAHAM: I hope the Congress is OK with that. I’m OK with
that. Does he have authority to put boots on the ground in
the Congo?

MR. SHEEHAN: Yes, sir, he does.

SEN. GRAHAM: OK. Do you agree with me that when it comes to
international terrorism, we’re talking about a worldwide
struggle?

MR. SHEEHAN: Absolutely, sir.

SEN. GRAHAM: Would you agree with me the battlefield is
wherever the enemy chooses to make it?

MR. SHEEHAN: Yes, sir, from Boston to the FATA.

SEN. GRAHAM: I couldn’t agree with you more. We’re in a — and
do you agree with that, General?

GEN. GROSS: Yes, sir, I agree that the enemy decides where the
battlefield is.

SEN. DONNELLY: Do we feel today that al-Nusra is threatening
our security?

MR. SHEEHAN: Senator, I believe that I don’t want to get in, in
this setting, the decision-making we have for how and we target
different groups and organizations around the world.

SEN. DONNELLY: OK. If a terrorist group is AQ-affiliated, does
that inherently mean that they are threatening the United
States?

MR. SHEEHAN: Yes, sir, although it’s a bit murky, I hate to
say, because there are groups that have openly professed their
affiliations with al-Qaida, yet, in fact, as a government, we
haven’t completely grappled with that as of now. And so — but
generally speaking, if — as for AUMF, as we mentioned, it has
to be an organized force, first, and secondly, that that
organized force has to be co-belligerently joined to al-Qaida
to threaten us. So when both of those factors are in place,
then we have the — we can move forward on AUMF.

SEN. DONNELLY: If that AQ-affiliated terrorist group is
operating wholly within another country and their actions to
date have involved only that country, does the AUMF still apply
to them?

MR. TAYLOR: Senator, as we indicated, we would do a fact-
intensive careful consideration. And as Secretary Sheehan
mentioned, one of the conditions is that they become
co-belligerent with al-Qaida in its hostilities against the
United States or its coalition partners, and that’s –

SEN. DONNELLY: Is that a call that you make as you see it?

MR. TAYLOR: Yes, sir, after a very intensive, careful review,
careful consideration of the intelligence and threat
assessments.

MR. SHEEHAN: And Senator, you ask a good question because when
a group aligns itself with al-Qaida and al-Qaida has an express
intent to attack Americans, home and abroad, but then do not
take the next step to be involved in that co-belligerency then
we have a judgment to make.

SENATOR KING: I’ve only been here five months, but this is the
most astounding and the most astoundingly
disturbing hearing that I’ve been to since I’ve been
here. You guys have essentially rewritten the Constitution here
today. The Constitution Article 1, Section 8, Clause 11 clearly
says that the Congress has the power to declare war. This
authorization, the AUMF, is very limited.

And you keep using the term associated forces. You use it 13
times in your statement. That is not in the AUMF. And you said
at one point, it suits us very well. I assume it does suit you
very well because you’re reading it to cover everything and
anything. And then you said at another point, so even if the
AUMF doesn’t apply, the general law of war applies and we can
take these actions.

So my question is how do you possibly square this with the
requirement of the Constitution that the Congress has the power
to declare war?

MR. SHEEHAN: I’m not a constitutional lawyer or a lawyer of any
kind, but let me talk to you a little — take a brief statement
about al-Qaida and the organization that attacked us on
September 11, 2001. In the two years prior to that, Senator
King, that organization attacked us in East Africa and killed
17 Americans at our embassy in Nairobi with loosely-affiliated
groups of people in East Africa. A year prior to 9/11, that
same organization, with its affiliates in Yemen, almost sunk a
U.S. ship, the U.S.S Cole, a $1 billion warship, killed 17
sailors in the port of Aden.

The organization that attacked us on 9/11 already had its
tentacles around the world with associated groups. That was the
nature of the organization then. It is the nature of the
organization now. In order to attack that organization, we have
to attack it with those affiliates that are its operational arm
that have previously attacked and killed Americans and
high-level interests and continue to try to do that.

SEN. KING: That’s fine, but that’s not what the AUMF says. You
can — what I’m saying is we may need new authority but don’t —
if you expand this to the extent that you have, it’s
meaningless and the limitation and the war power is
meaningless. I’m not disagreeing that we need to attack
terrorism wherever it comes from and whoever’s doing it, but
what I’m saying is let’s do it in a constitutional way, not by
putting a gloss on a document that clearly won’t support it. It
just doesn’t — it just doesn’t work.

I’m just reading the words. It’s all focused on September 11th
and who was involved and you guys have invented this term
associated forces that’s nowhere in this document. As I
mentioned, in your written statement, you use that — that’s the
key term, you use it 13 times. It’s the justification for
everything and it renders the whole war powers of the Congress
null and void.

MR. TAYLOR: Wee are a sovereign state in a system of sovereign
states. We benefit greatly by respect for each nation’s
sovereignty. We are bound by treaty to — that is the U.N
charter, to respect the sovereignty of other states. And there
are, as recognized in the U.N. treaty, there is the inherent
right of self-defense, but that’s one basis for overcoming a
state’s sovereignty, if it’s necessary for us to exercise our
inherent right of self-defense. Another basis is the consent of
the host country and that is a very important basis for our
operations outside of Afghanistan.

SEN. LEVIN: The issue has been raised about other entities
using — than the DOD — using remotely piloted aircraft strikes.
And my question is should the use of these drones be limited to
the Department of Defense or should other government agencies
be allowed to use such force as well, for instance, the CIA?
Now let me, I think, ask either one of you, Secretary or Mr.
Taylor.

MR. SHEEHAN: Mr. Chairman, the president has indicated that he
has a preference for those activities to be conducted under
Title 10. We’re reviewing that right now but I think we also
recognize that that type of transition may take quite a while,
depending on the theater of operation.

MR. SHEEHAN: Senator, just one clarification. When I was asked
whether the president had authority to put boots on the ground,
which by the way is not a legal term, boots on the ground, and
when I said they did — he did have authority to put boots on
the ground in Yemen or in the Congo, I was not
necessarily referring to that under the AUMF. Certainly, the
president has military personnel deployed all over the world
today, in probably over 70 or 80 countries and that authority
is not always under AUMF. So I just want to clarify for the
record that we weren’t talking about all of that authority —
subject to AUMF.


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