Mattis and Tillerson: 'A New AUMF Is Not Legally Required'

By Susan Jones | October 31, 2017 | 6:21am EDT
Secretary of Defense James Mattis and Secretary of State Rex Tillerson testify before the Senate Foreign Relations Committee on Oct. 30, 2017. (Photo: Screen grab/C-SPAN)

( - Leave the fighting to us. That basically sums up the Trump administration's arguments on Monday, as two top secretaries testified against a new authorization for the use of military force (AUMF).

Defense Secretary James Mattis and Secretary of State Rex Tillerson told the Senate Foreign Relations Committee that the current 2001 and 2002 Authorizations for the Use of Military Force, aimed at al Qaeda and the perpetrators of the 9/11 attacks, should stay in place, even if Congress approves a new AUMF.

"The 2001 and 2002 authorizations to use military force...remain a sound basis for ongoing U.S. military operations against a mutating threat," Mattis told the Committee.



Following the 9/11 attacks and to prevent future terror attacks on the United States, Congress passed the 2001 AUMF which gave the president has authority "to use all necessary and appropriate force against those nations, organizations or persons he determined planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

The 2002 AUMF provides the president with authority to "defend the national security of the United States against the continuing threat posed by Iraq."

Mattis said "a statement of continued congressional support" for ongoing military operations "would be welcome," but "a new AUMF is not legally required to address the continuing threat posed by al Qaed, the Taliban, and ISIS."

"Article II of our Constitution, the 2001 AND 2002 AUMFs, provide sufficient legal authority for us to engage and defeat the current threat, which we are doing by working by, with and through our allies and partners," Mattis said.

But even during the Obama administration, some members of Congress, including Democrat Sen. Tim Kaine (Va.), were calling for Congress to pass a new AUMF aimed at ISIS in Iraq and Syria.

Kaine, a member of the Foreign Relations Committee, said on Monday he worries about being in "an endless war with no congressional vote against newly formed terrorist groups all over the world." Such a war could go on "forever," Kaine said, "without a vote of Congress," which has the Article I power to declare war. (Article II made the president commander in chief.)

"I repeat what I've often said in the last four years," Kaine told the committee. "It's time for Congress to have a public debate and vote about an authorization for U.S. military action against non-state terrorist groups. Many of us believe we're legally required to do so. Others believe if not required, we would be wise to do so...Our troops and the America public deserve an open debate and vote on the extent of military operations."

But Mattis argued that any debate on a new or revised AUMF "needs to incorporate the following factors."


First, the 2001 and 2002 AUMFs should not be repealed. After numerous court cases and debates, there appears to now be a general consensus by all three branches of government that these two AUMFs provide sufficient authority to prosecute ops against al Qaeda, the Taliban, and we believe, ISIS.

Repealing the 2001 and 2002 AUMFs would only cause unnecessary policy and legal uncertainty, which could lead to additional litigation and public doubt. The uncertainty accompanying that situation could only signal to our enemies and friends that we are backing away from this fight. It would stall our operations, immediately reduce allied commitments ad support and create significant opportunities for our enemies to seize the initiative.

Additionally, repealing the AUMFs without new authority would deprive us of the ability to detain dangerous enemy combatants who could be released to fight again.

Mattis argued that any new AUMF must not be time restricted. He noted that President Trump's South Asia strategy is "conditions based, not time based," because war is fundamentally unpredictable. He said there's no way to put a timeline on an "adaptive enemy."

"Instead, we must recognize that we are in an era of frequent skirmishing, and we are likely to end this fight sooner if we don't tell our adversary the day we intend to stop fighting." Making an AUMF conditions-based would not lessen Congress's authority, Mattis said, because Congress has the power of the purse.

Mattis also said any new AUMF "must not be geographically constrained," since the U.S. is fighting a "transnational enemy," that does not respect international borders.

Mattis ended his opening statement with a promise to "keep Congress fully informed" so it can fulfill its constitutional role."

Secretary of State Tillerson made similar argument:

"The 2001 AUMF remains the cornerstone for ongoing U.S. military operations and continues to provide legal authority relied upon to defeat this (terrorist) threat," he said.

But if Congress decides to write new AUMF legislation, it must be in place before or simultaneous with the repeal of the old ones, Tillerson said.

"Failure to do so could cause operational paralysis in our military. It could cause our allies in the global coalition to question our commitment to defeating ISIS." Tillerson added that repeal before replacement could also "raise questions about the domestic legal basis for operations at Guantanamo Bay."

Like Mattis, Tillerson also argued aginst time and geographical constraints.

Kaine told the two secretaries that Congress is "more than a feedback loop":

The senator noted that war declarations or authorizations are "a constitutional power, and we shouldn't be putting troops into harm's way as Congress stands back, trying not to have our fingerprints on this...I worry about deeply about handing the power over to presidents to do this without the feeling the need to come to Congress at all."

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