If Rep. Adam Schiff (D-CA) has his way, next year will be different. If his amendment to this year’s military spending bill passes, 2015 could be the first year in more than a decade that limits the wide reaching authority to wage war given to the White House in the months following 2001.
Schiff’s proposed amendment to the National Defense Authorization Act (NDAA) is deceptive in how brief it is. Just six lines long, the amendment set for debate on the House floor on Wednesday calls for the Authorization for the Use of Military Force passed in 2001 to finally sunset. “The Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107–5 40) is hereby repealed,” the legislative text reads. “This section shall take effect on the date that is one year after the date of the enactment of this Act.”
That’s the entirety of the amendment. But should those thirty-one words be added to the NDAA, the effect would be extremely wide reaching, erasing the scope of the sixty words that it would be replacing in the way that the United States conducts operations against terrorists overseas. In the years after Congress hastily passed the 2001 AUMF, both the Bush and Obama administrations have used it to conduct operations in places like Yemen, Pakistan, and Somalia where no declaration of war exists, but the local government allows the presence of special operators, unmanned drones, and missile strikes on their soil. Pulling back on that ability has been the goal of many almost since the AUMF was put into place, but now the landscape appears to be shifting away from those who would rather keep it intact.
“I think that over the course of the last year, there’s been growing recognition of just how outdated the current AUMF is,” Schiff said in a phone interview with ThinkProgress. As an example of the need to sunset the AUMF and reform it, Schiff pointed to the ongoing civil war in Syria. One of the most violent groups on the ground is the Islamic State of Iraq and the Levant (ISIL), which grew out of Al Qaeda in Iraq. Though originally part of the Al Qaeda “brand,” ISIL has since been excommunicated from Al Qaeda and fighting between ISIL and the Nusra Front — core Al Qaeda’s preferred jihadi group — has resulted in more deaths in recent weeks than fighting between the Syrian government and rebels.
“That raises the question of whether [ISIL] would be covered by the current AUMF,” Schiff said, “and if it’s not do we really want to be in a situation where Al Qaeda is able to choose which groups are subject to the authorization for the use of force and which are not? That’s not something that I think that we ought to be delegating to our enemies.”
The debate over Schiff’s amendment will only be ten minutes long — given the sheer number of amendments up for debate, time is a precious commodity during the NDAA debate. But it comes on the same day that the Senate Foreign Relations Committee met across the Capitol to discuss what comes after the AUMF. There Obama administration officials made the case that should the AUMF be repealed existing counter-terrorism actions would not halt in such a way that the U.S. would be threatened. “I am not aware of any foreign terrorist group that presents a threat against this country that the president lacks authority to defend against simply because they are not covered by the AUMF,” Defense Department General Counsel Stephen Preston said during the hearing. “If the group presents a threat the president does have authority to take steps against that threat.”
That analysis tracks with the thinking of Rep. Adam Smith (D-WA), ranking member of the House Armed Services Committee, who also spoke to ThinkProgress. “Initially, I was worried about it,” he said of Schiff’s amendment, given the threats that still exist against the U.S. But under international law, he said, the United States has the right to self-defense in situations in situations where a threat is imminent. Given those protections, “we don’t need an AUMF,” he said. “The AUMF gives us broader authority that arguably goes against international law, by giving us an ability to have an expanded ability to decide what an imminent threat is,” Smith continued, adding “I am more open to the idea that we can defend ourselves without the 2001 AUMF than I used to be.”
Should Schiff’s amendment pass, the earliest that it would be able to be enacted would like be June 2015, given the year-long grace period it offers. That would place it roughly six months after the last U.S. combat troops withdraw from Afghanistan, the original date to which a previous version of the amendment pegged the sunset. Schiff said this was because the six-month time-frame was likely too short now, particularly given the need to decide just what — if anything — will replace the AUMF. “Twelve months is a responsible period of time for Congress to act, so that’s why we picked that date,” he said.
The debate over Schiff’s amendment comes nearly one year exactly after President Obama pledged in a wide-ranging speech on national security that he would work closely with Congress to “refine, and ultimately repeal” the AUMF. “Groups like [Al Qaeda in Arabian Peninsula] must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States,” Obama said at the time. “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.”
Today marks the second time that there will be a vote on the House floor over repealing the AUMF. Last year Schiff offered a similar amendment to the 2014 NDAA which received 185 votes in favor, including 30 Republicans. Schiff believes the recognition of the problem has only grown since then, leaving the possibility open that the AUMF could finally be on its way out. But if not, we could well be having the same debate “I think in the absence of a sunset, I fear we’ll find ourselves where we are now a year from now “ he said, “having done nothing and continuing to rely on something that no longer provides a good description of the conflict that we’re in.”