Seventeen years after the passage of the Authorization for the Use of Military Force (AUMF) in the wake of the 9/11 terrorist attacks, it still forms the legal basis for the majority of U.S. military action in the Middle East, such as anti-ISIS operations in Syria. Lawmakers must grapple with two questions related to the adequacy of this legal authority for current and ongoing military operations.
First, do today’s counter-terrorist operations against groups that are not responsible for nor even existed at the time of the 9/11 attacks require a new or expanded AUMF?
Second, as the United States confronts and reacts to new non-terrorist threats in Syria, such as recent military strikes conducted in response to chemical weapons use by the Syrian regime or aggression by Iranian or Iranian-allied forces, is a new and separate AUMF needed to cover operations against non-ISIS forces in Syria?
Legislation recently introduced in Congress seeks to address, rightfully, the first of these concerns. The second deserves to be debated in Congress as well.
What is the AUMF?
On September 18, 2001, President George W. Bush signed the AUMF into law in response to the September 11 attacks. It authorized the president to “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 acts of international terrorism against the United States by such nations, organizations or persons.”
Rather than authorizing a broad and unlimited “war on terror,” the AUMF’s mandate is specifically tied to those responsible for the September 11 attacks: the Taliban and al Qaeda. The threat landscape facing the United States has changed drastically since 2001 and the AUMF has continued to be used as a legal basis for U.S. military action in Syria.
A separate AUMF, passed in 2002, grants the president the authority “to defend the national security of the United States against the continuing threat posed by Iraq” and has been used to provide basis for ongoing anti-ISIS operations specifically in Iraq.
Why Does the AUMF Matter?
With the United States and its allies embroiled in the complicated conflict in Syria, the question of how far the AUMF reaches is especially relevant. Successive administrations have argued that the AUMF obtained in 2001 applies to the fight against ISIS and that approval from Congress to conduct operations against the ISIS threat is unnecessary. Others disagree, arguing that ISIS is a separate entity from al Qaeda, and any action taken against ISIS would not be covered under the current AUMF.
In a written statement to The New York Times, President Obama’s White House legal team defended the campaign against ISIS (referred to as ISIL) in 2014, writing: “The President may rely on the 2001 AUMF as statutory authority for the military airstrike operations he is directing against ISIL.”
The Obama White House further explained that it interpreted the 2001 AUMF to cover the use of force against ISIS based on the group’s “longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, and extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy, the President may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL.”
Critics of the expansive use of the AUMF argue that the last sentence is most telling. Though ISIS came into being as Al-Qaeda in Iraq (AQI), it was disavowed by al Qaeda leader Ayman al-Zawahiri in February 2014, after ISIS’s leader Abu Bakr al-Baghdadi declared himself the leader of a new Islamic caliphate. Furthermore, ISIS did not come into being until 2004—three years after the AUMF’s passage.
The Trump administration has continued to use the broad interpretation of the AUMF. In two letters published by The New York Times in February 2018, officials from the Pentagon and the State Department wrote: “The 2001 Authorization for Use of Military Force (AUMF) authorizes the United States to use force against al-Qa’ida, the Taliban, and associated forces and against ISIS.” They then appeared to interpret the purview of the 2001 AUMF even more broadly to encompass limited strikes against the Syrian regime and pro-regime forces “to defend U.S., Coalition, and partner forces engaged in the campaign to defeat ISIS,” while also noting that Syrian regime forces are not “associated forces” of ISIS under the AUMF.
Retaliatory strikes against the Assad regime for using chemical weapons have added another legal wrinkle. Rather than appealing to the AUMF, the Trump administration pointed to the president’s constitutional authority as Commander-In-Chief, arguing that it grants him the power to use military force in defense of U.S. national interests.
The Future of the AUMF
Despite the Obama administration’s stated intention to refine or repeal the 2001 AUMF, and concerns by members of Congress about the wide-ranging actions undertaken under the AUMF, it has never been amended.
The use of the AUMF for military action against ISIS has been ongoing for the past four years. However, as the United States pursues additional goals in Syria, such as pushing back against the Assad regime’s use of chemical weapons or defending allies who are helping to battle ISIS against Iranian aggression, and debates an even more robust strategy of countering Iran’s growing influence in the region, the legal justification becomes far more murky.
There are several proposals under consideration in Congress that call for updating the AUMF. On April 16, Senators Bob Corker (R-TN), Tim Kaine (D-VA), Chris Coons (D-DE), Bill Nelson (D-FL), Jeff Flake (R-AZ), and Todd Young (R-IN) introduced a bipartisan bill that would explicitly permit military operations against al Qaeda, the Taliban, ISIS, and “designated associated forces.” It does not authorize attacks against a nation-state and therefore seemingly could not be used for any future strikes against the Assad regime. The proposal allows the president to classify new groups as “associated forces” and to expand operations beyond the countries where the United States is currently engaged, though it imposes a requirement that the president notify Congress, and puts in place a mechanism for Congress to review and potentially block any expanded strikes.
The proposed amended AUMF also does not contain a specific expiration date, which many have called for. It does include measures for review every four years, and an expedited process to repeal or modify it.
Even if the proposal fails to gather sufficient support for passage, it is an important effort to move the discussion of an updated AUMF forward.
Discussion of an even broader AUMF, one which provides a basis not only for ongoing anti-ISIS activities but also for putting pressure on Iran and the Assad regime, would be an opportunity for a much-needed debate about U.S. interests in Syria and a more comprehensive strategy. Giving the president authority to use military force against Iranian forces and Assad would signal a greater commitment to act in defense of those interests and put our adversaries on notice.
KEYWORDS: AL QAEDA, AUTHORIZATION FOR USE OF MILITARY FORCE (AUMF), BASHAR AL-ASSAD, BOB CORKER, CHRIS COONS, DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE, ISIS, JEFF FLAKE, PRESIDENT BARACK OBAMA, PRESIDENT DONALD TRUMP, SYRIA, TALIBAN, TIM KAINE