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When did Congress authorize fighting in Niger? That’s an excellent question.

- November 11, 2017

It’s Veterans Day – not a bad time to give some thought to the Authorization for the Use of Military Force (AUMF). The AUMF, which Congress passed in 2001 in response to the Sept. 11 terrorist attacks, has been back in the news lately. After four U.S. soldiers were killed in Niger in October, members of Congress seemed to wake up, asking: Niger? When did we authorize fighting in Niger?

That’s an excellent question.

What is the AUMF?

The 2001 AUMF (Public Law 107-40) was adopted by huge margins – with only one dissenting vote in the House and none in the Senate — just three days after the Sept. 11 attacks. Since it was not yet clear who had carried out the attacks, the law gave the president broad power to know, and to do. He was to determine who “planned, authorized, committed, or aided the terrorist attacks,” and was then authorized to use “all necessary and appropriate force against those nations, organizations, or persons” or those that “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

For good measure, the AUMF also stated that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States” – though this was in a list of “whereas” clauses early in the resolution rather than in the authorization itself.

The AUMF authorized – and still authorizes – U.S. military action against al-Qaeda and the Taliban in Afghanistan. In the 2004 case Hamdi v. Rumsfeld, the Supreme Court found that the AUMF also allowed for the detention of those captured as a result of such action. This included American citizens held as “unlawful enemy combatants,” though such detainees had to receive some measure of due process. (What that meant, for U.S. citizens and others, has been the subject of many other court cases.)

Why revisit the AUMF?

As the New York Times’ Charlie Savage puts it, “distance has grown between the text of the 2001 authorization and the combat waged in its name.” In the past fifteen years the war against al-Qaeda has spread far beyond Afghanistan, and to many groups that are not al-Qaeda.

In 2014 the Obama administration, seeking legal justification for what became Operation Inherent Resolve (OIR) against ISIS in Iraq, Syria, and elsewhere, argued that even though ISIS formed after the 9/11 attacks – and had been repudiated by al-Qaeda – it was still that group’s “associated” or successor force. Therefore, the 2001 AUMF applied to OIR. And therefore, the requirements of the 1973 War Powers Resolution that Congress grant specific authorization for the long-term use of American force were met.

Many observers argued this stretched the AUMF too far. In 2001 those voting for the AUMF had sworn it was not a blank check. Still, Congress did not push back.

But presidential claims about the AUMF’s scope keep growing, as the Niger ambush brought home. U.S. troops are active in at least 19 countries. The blanket of the AUMF was spread even over the use of force against the Syrian government – which has perpetrated many evils, but not the 9/11 attacks. When an American jet shot down a Syrian bomber in June, the Trump administration argued that American forces would not be in Syria if not for the ISIS threat, and that therefore the use of a “necessary and appropriate measure in support of counter-ISIS operations” was warranted.

By this logic, Sen. Ben Cardin (D-Md.) suggested at a recent Senate Foreign Relations Committee hearing on the topic, the AUMF and the 2002 Iraq War authorization are “mere authorities of convenience for presidents to conduct military activities anywhere in the world.” And Senate Foreign Relations Chair Bob Corker (R-Tenn.) — who in the past dismissed the need for new legislation — recently argued that though the 2001 law is technically sufficient, “we should update the AUMF to reflect the current conflict and reassert Congress’ constitutional role.”

What would a new AUMF look like?

That’s the problem. Some in Congress want to simply empower the president. Others want to limit his autonomy. Compare, for instance, two proposed replacement AUMFs, one sponsored by Sen. Todd Young (R-Ind.), and one by Sens. Jeff Flake (R-Ariz.) and Tim Kaine (D-Va.). Young’s version highlights the “horrific acts of violence” committed by ISIS, and grants the president power to use “all necessary and appropriate force” against al-Qaeda, the Taliban, ISIS, and unspecified “successor organizations, and associated forces.” It also grants explicit authority to detain such combatants and those who support them. It has no expiration date.

By contrast, the Flake/Kaine version starts with more legalistic “whereas”-es that say things like “the United States should take action against non-state, transnational actors in a disciplined way that meets the current threat environment.” It authorizes the president to use force against al-Qaeda, the Taliban, ISIS, and “associated persons or forces.” But in doing so, it specifies a handful of such forces (e.g., al-Shabab and the a-Nusra Front). The president has to report on any others he thinks are included, and must justify the use of force in countries other than Afghanistan, Iraq, Syria, Somalia, Libya, or Yemen. Those determinations can be reversed by congressional vote. And while this authorization can be renewed, it expires after five years.

Third Way has charted still other competing proposals, which differ on such things as how long what kind of force is authorized, and where and against which groups it applies.

Would a new version pass?

In September, Sen. Rand Paul (R-Ky.) forced a roll-call vote on repealing the AUMF within six months. It failed, 61-36. Still, some of the Senate “no” voters stressed that while they were against simple repeal, they would be happy to, er, repeal and replace. And over the summer a House subcommittee working on a defense bill surprised Capitol Hill by adopting an amendment sunsetting the AUMF after 240 days.

Even Defense Secretary James Mattis sympathizes. He testified in March that a new resolution would be “a statement of the American people’s resolve… [I] have not understood why the Congress hasn’t come forward with this, at least to debate.”

Earlier this year, the D.C. Circuit Court of Appeals rejected civilian victims of drone strikes’ effort to win judicial oversight over such tactics, ruling (I think correctly) that “the foreign target of a military strike cannot challenge in court the wisdom of [that] military action taken by the United States.” Congress is where the U.S. should hold such debates, not the courtroom.

But the ruling also commented caustically that “congressional oversight is a joke — and a bad one at that.” I fear that’s correct, too. Passing a new AUMF might be a good punchline.