The AUMF and America’s Forever War

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.

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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.

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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.

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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 --

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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?

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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.

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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.

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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.