On May 22, 2014, the U.S. Senate Committee on Foreign Relations held a hearing entitled “Authorization For Use of Military Force (AUMF) After Iraq and Afghanistan.”
Washington’s Blog reports that according to Jameel Jaffer, deputy legal director of the ACLU and director of the ACLU’s Center for Democracy, representatives of the Obama administration repeatedly refused to answer the question of which groups the U.S. is at war with. Jeffer tweets:
Senate: Which groups are we at war with?
Admin: That’s classified.
— Jameel Jaffer (@JameelJaffer) May 21, 2014
There were four individuals testifying before the committee, including two lawyers representing the Obama administration:
- Stephen W. Preston, General Counsel, Dept. of Defense
- Mary McLeod, Deputy Legal Adviser, Department of State
The other two expert testimonies were from:
- Harold Hongju Koh, Sterling Professor International Law, Yale Law School
- Michael B. Mukasey, former Attorney General of the United States
The purpose of the hearing, in the words of committee chairman Sen. Robert Menendez (D-NJ), was to reassess the 2001 9-11 mandate or Authorization For Use of Military Force (AUMF) — the broad war powers given to the president after 9-11 — “in light of new circumstances and new threats,” given “the winding down of significant U.S. military activities in Afghanistan by the end of this year.”
In other words, the committee wants to ensure that the 9-11 mandate doesn’t devolve into a carte blanche or blank check for endless or permanent war. Additionally, as articulated by committee member Sen. Bob Corker (R-Tennessee), the Senate also wants to ensure that the administration be given the legal authority and power to continue counter-terrorism activities, especially against new terrorist groups that are independent of Al Qaeda and the Taliban — the two groups that fall under the 9-11 AUMF.
The Obama administration’s concern is to devise “a legal framework” to enable the U.S. to continue to combat terrorists if the 9-11 AUMF is repealed although, as McLeod and Preston repeatedly emphasized, Obama as president already has the authority under Article II of the Constitution to act against terrorists posing “an imminent threat” even without the AUMF.
That led to a bizarre exchange between Sen. Corker and McLeod & Preston, on whether an AUMF is even needed given McLeod’s and Preston’s insistence that the president already has the Constitutional authority to act against terrorists. In Sen. Corker’s words, it sounds like Congress and the AUMF are irrelevant.
Beginning at around the 55:00 mark, Corker pretty much lost it. Trying to determine if the AUMF and Congress are irrelevant, Corker asked if there are terrorist “groups, today, that the [Obama] administration cannot go against because the AUMF does not allow you to do that.”
Preston first answered that the AUMF as it is today allows the U.S. to go against specifically al-Qaeda, the Taliban, and groups “associated with” al-Qaeda and Taliban.
At that, Sen. Corker blew up and said Preston was not answering the question. So Preston then said, “I am not aware of any foreign terrorist group that presents a threat of violent act against this country that the president lacks authority to use military force to defend against as necessary simply because it has not been determined to be an associated force within the AUMF.” In other words, even if a group not covered by the AUMF presents a threat to the U.S., the president has the authority to act against it.
Sen. Corker noted that what Preston was saying is that the president really doesn’t need or have to rely on the AUMF “to do whatever”! Corker also complained that Obama had not reached out to him or any other member about the AUMF. Corker called the testimonies (by Preston and McLeod) “hollow” and the hearing itself “not gratifying.”
Sen. Menendez then said, quite logically, that given the president already has all the authority he needs supposedly from the Constitution, why not repeal the (irrelevant) 9-11 AUMF?
Beginning at around the 1:20:00 mark, Sen. Ron Johnson (R-Wisconsin)said he found the hearing “confusing” because isn’t it true that on May 23, 2013, Obama had declared the global war on terror to be over?
Preston replied that “we are at war with Al Qaeda and the Taliban and associated groups” but it’s not a “global war on terror” like against a religion or something like that. To which Sen. Johnson rightly observed that Obama effectively was quibbling about semantics. Later in the hearing, at around the 2:31:00 mark, Sen. Corker returned to that and wryly remarked that Obama said the global war on terror is over but the United States still goes all around the world fighting terror. LOL
When Sen. Johnson pressed Preston if the AUMF covers what the administration is doing against terrorist groups and if so, why would Obama favor repealing the AUMF? Preston mealy-mouthed and said that what Obama meant is that he eventually favors the repeal, but not right now.
Sen. Johnson then asked Preston what Obama proposes about AUMF — if not repeal, then what changes does he want? But Obama hasn’t conveyed what he wants to Congress throughout the past year. Preston said Obama wants to establish a “legal framework” but refused to elaborate what that is.
Sen. John McCain (R-Arizona) pressed Preston whether he thinks the people who attacked the U.S. consulate in Benghazi are terrorists. Preston said they are part of a terrorist organization. McCain asked if so, then Obama under the AUMF and the Constitution has the authority to strike and eliminate the Benghazi terrorists, to which Preston simply refused to give a straight forward answer of “yes” or “no.”
In reference to Preston’s and McLeod’s emphasis on Obama having war-making power, with or without AUMF, from the Constitution’s Article II, Sen. Chris Murphy (D-CT) asked Mary McLeod if Obama has the authority to go to war without Congress’ approval against a sovereign country that’s harboring terrorists posing an imminent threat to the United States, McLeod simply refused to really answer.
Sen. Menendez pointed out that when the U.S. went to war against Libya, that country didn’t pose an imminent threat against America. McLeod had said earlier that the U.S. did that with NATO and UN approval. Menendez asked if Obama had authority to act with UN approval but without asking Congress, to which McLeod again didn’t really answer, except to blabber incoherently about “international law”.
Beginning at around the 2:01:00 mark, Sen. Corker made concluding observations that:
- Obama really does not have a Syrian policy.
- Obama really does not have a policy or opinion on the AUMF.
Michael Mukasey made a good case for not repealing the AUMF because that legislation enables Congress, especially the Senate, to exercise its oversight function over the president. Without the AUMF, we’ll be left with the president’s all-encompassing and rather amorphous Article II authority to go to war against an “imminent threat,” however that term is defined. Professor Harold Koh amplified that by pointing out that much can be done by the president long before the War Powers Act’s 60-days condition kicks in. (According to the Act, 60 days after the initiation of conflict, the president must obtain Congress’ approval to continue to fund U.S. forces.)
After watching and listening to 2 hr. 44 minutes of the hearing (click here), I agree with Senator Bob Corker:
The testimonies by the Obama administration’s two representatives Stephen Preston and Mary McLeod were utterly “hollow”; the entire hearing quite pointless and decidedly “not gratifying”; and Obama really doesn’t have a policy about Syria or AUMF or any foreign policy for that matter.
This article first appeared at Consortium of Defense Analysts.