Through the Looking Glass on the AUMF
On May 16, 2013, the Senate Armed Services Committee held a hearing that Senator Angus King called the “most astoundingly disturbing hearing that I have been to since I have been here.” The subject was the Authorization for Use of Military Force (AUMF), the piece of legislation passed in the immediate aftermath of the 9/11 attacks that has served as the legal basis for both America’s war in Afghanistan and its broader “war on terror.” Observers at that hearing were stunned both by the breadth of the executive branch’s claims of authority and by the degree of confusion that was evident over some elemental facts concerning a conflict that had already been going on for over a decade. Rosa Brooks, a Georgetown law professor, commented that day that she had “never seen such an accomplished, talented group of people give such muddled and incoherent answers to some fairly straightforward questions.”
Yesterday, almost exactly a year later, in front of a different Senate committee, the same thing happened. Only this time it was even worse.
This time, the scene was the Senate Foreign Relations Committee. The witnesses were Mary McLeod, the principal deputy legal adviser to the State Department, and Stephen Preston, general counsel of the Department of Defense. The subject—the scope of the AUMF—was the same. And the lack of clarity on any of the issues that the hearing was intended to shed light on was even more pronounced.
Here are just a few of the things that the witnesses present declined to tell the senators when asked:
1) What specific authorities does the AUMF grant the president that he would not otherwise have on the basis of his Article II powers as commander in chief?
When considering whether the AUMF should be repealed or modified, this is perhaps the most important question to get a handle on first. It’s long been clear that some level of counterterror operations could go on even without a formal authorization for use of force. But beyond that, little is known for sure as to how broadly the administration interprets its Article II powers. Senator Tim Kaine highlighted three specific issues: whether the United States could keep holding prisoners at Guantánamo Bay, whether it could keep military forces in Afghanistan after 2014, and whether and to what extent the Department of Defense could continue conducting targeted-killing operations in the absence of an AUMF. The witnesses did not give clear answers on any of these issues, suggesting that all of them might potentially be affected by the AUMF’s repeal but declining to say anything more definitive than that. The end result is that we are left with almost no idea about what the actual consequences of repealing the AUMF would be.
2) What is the White House’s position on repealing the AUMF now?
Last May, in a speech at the National Defense University, President Obama said, “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” Since then, however, the administration has done practically nothing toward that end. It has not outlined any kind of vision for how the legislation might be usefully refined, and it has not put forward any sort of timeframe for when it thinks it might be prudent to repeal the law. And yesterday, when Kaine asked the witnesses what the administration’s position would be on a bill that would repeal the AUMF now, McLeod replied, “As of today, senator, I think the answer is, ‘We don’t know.’” Preston concurred, saying, “We did not come here this morning equipped to answer that question.”
3) Who are we at war with?
Since at least last July, the executive branch has kept the list of groups that it considers covered under the AUMF classified. At the hearing, this became an issue again, with Senator Bob Corker asking the witnesses which groups the country was authorized to conduct operations against under the AUMF. Preston confirmed that Al Qaeda in the Arabian Peninsula was covered, but said that he would only answer questions regarding other groups—such as Al Nusra Front and the Islamic State of Iraq and the Levant—in a classified session. Corker summed up the absurdity of this situation in a single line: “I don’t know how we can debate these issues when you cannot even tell us whether we can or cannot go after groups based on authorizations that Congress itself passed.” Quite simply, it is impossible to have a reasoned public discussion on a war when the public is not permitted to know the answer to a question as basic as who the enemy in that war is.
It’s difficult to put into words just how bizarre the entire hearing was. Senators often appeared exasperated over the course of the morning. Corker at one point called one statement made by a witness “one of the most bogus, lacking-in-substance comments I have ever heard before this committee.”