Lawmakers are considering new guidelines on the Authorization for Military Force (AUMF), the 17-year-old law cutting all kinds of legal justification for actions taken in the name of the “war on terror” after the September 11 attacks.
The bipartisan AUMF 2018 is intended to repeal and replace the 2001 AUMF, and would repeal the 2002 AUMF that allowed the United States to invade Iraq the following year. But the new proposal could lead to a “permanent state of warfare,” human rights advocates warn.
The resolution’s principal sponsor, Senate Foreign Relations Chairman Bob Corker (R-TN), released a draft of the proposed AUMF on Monday, and said lawmakers might take it up early next week, depending on whether backers can secure its passage by a wide margin.
“What matters on things like this is if they pass with a degree of support. If it’s a nail-biter… they [Republican leaders] think it’s not something that’s really successful; there’s less reason to bring it up,” he told Roll Call.
Co-sponsored by Jeff Flake (R-AZ), Todd Young (R-IN), Tim Kaine (D-VA), Chris Coons (D-DE), and Bill Nelson (D-FL), the proposed AUMF “provides uninterrupted authority to use all necessary and appropriate force in the current and continuing armed conflict against the Taliban, al Qaeda, ISIS and associated forces.”
The new AUMF faces criticism from two different camps. In one camp, some lawmakers don’t want to see the present authorizations for military force reigned in. House Speaker Paul Ryan (R-WI), for instance, is in lock-step with the White House’s previous position against any revamp of the law, saying he won’t allow any bill that limits the president’s current powers to hit the House floor.
In the other, probably more logical camp, lawmakers like Sen. Robert Menendez (D-NJ) and Rand Paul (R-KY) feel it would only expand the president’s powers rather than serve as any kind of check against it.
White House officials on Monday gave contradictory statements on the AUMF, saying that its position “hasn’t changed,” but that it has also yet to take an official position on the proposed revamp.
A ‘blank check’ for war
The 2018 AUMF does not repeal either the 2001 or 2002 authorization — if anything, it codifies, cements, and expands their scope. It includes neither a geographic focus nor a sunset clause on military operations.
“It doesn’t do anything to reign in the administration’s power to use lethal force against anyone it deems a terrorist,” said Daphne Eviatar, director of security with human rights, at Amnesty International USA.
“Unfortunately we already had a situation where we have the administration interpreting the current 2001 and 2002 AUMF very broadly, but this just gives a rubber stamp of approval for that…there’s no end,” she said.
Just what constitutes an “associated force” is unclear. What is clear, though, is that the 2018 AUMF could give the president expanded powers to wage war against non-state actors, without geographic restriction.
This is a nebulous, but crucial point: Under the 2018 AUMF, the U.S. government can keep finding new “associated forces” in any country. It can apply the international laws of war (which govern who can be attacked, the protection of civilians, the treatment of detainees, and more) to any armed conflict against an extremist groups.
This, said Eviatar, is a reading of international law that no other country would accept.
Furthermore, the targets do not have to be identified — so the country could wage war indefinitely against groups unknown to the U.S. public.
“It seems to hand a blank check to the president, saying, ‘you can name whoever you want to go after and you have this authorization from congress,’ — there are ways congress can pull back, but as a practical matter it is not likely to do that,” said Eviatar.
Supporters of the 2001 AUMF can’t say that the new AUMF ties the hands of U.S. forces in dealing with extremists overseas.
It would not permit attacks against sovereign states, which means missile strikes, like the ones Trump ordered against Syria in April 2017 and earlier this month, would not be covered by the new AUMF.
Although the proposed revamp does include congressional review (with the ability to repeal), it’s every 4 years. If it fails to do so, then the president retains the powers outlined in the law.
“It’s disastrous. It’s terrifying. Especially when we’re talking about an administration that has no regard for the rule of law or diminishing civilian casualties,” Yasmine Taeb, senior policy counsel at The Center for Victims of Torture, told ThinkProgress.
“These are all issues we’re dealing with in this new administration and its lack of transparency,” she added.
“It’s going to be incredibly difficult [for us] to get behind a new war authority when we feel as though it would be worse than the status quo,” said Taeb.
But if the 2018 AUMF passes, Eviatar points out that it would set a precedent, telling other countries that they too can interpret international law to go after the “associated forces” of their stated enemies.
“And it becomes very dangerous. It’s hard to imagine that we wouldn’t be in a permanent state of warfare — not only the United States, but other countries against groups they’re concerned about,” she said.