Senate Panel Agrees Current War Authorization Is Outdated, But That’s Where Agreement Ends

Susan Jones | June 20, 2017 | 11:30am EDT
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Sen. Bob Corker (R-Tenn.), chairman of the Senate Foreign Relations Committee, opened a debate Tuesday, June 20, 2017 on the need for Congress to pass a new authorization for the use of military force. (Screen grab from C-SPAN)

( - The Senate Foreign Relations Committee held a hearing Tuesday on repealing the outdated 2001 and 2002 Authorizations for the Use of Military Force and passing one that applies to ISIS and is more closely tailored to the current war on terrorism.

The hearing comes one day after Joint Chiefs Chairman Joseph Dunford said the U.S. shootdown of a Syrian jet in Syrian airspace on Sunday was a defensive move that is legally justified by the two resolutions that Congress passed long ago, in 2001 and 2002.

"And for those who don't know, we're relying now on the 2001 authorization of use of military force that was after 9/11. It was modified in 2002," Dunford told a gathering at the National Press Club on Monday. "What I have said is that we have all the legal authority that we need right now to prosecute Al Qaida, ISIS, and other affiliated groups. But my recommendation to the Congress was that they pass an authorization of use of military force."

Dunford was actually talking about two separate authorizations for the use of military force (AUMF), neither of which applies directly to the current fight against the Islamic State in Iraq, Syria and other countries.

Seven days after the 9/11/2001 terror attacks, President George W. Bush signed into law an AUMF authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."

But it was al Qaida that planned and committed the terrorist attacks against the United States. The Islamic State or ISIS did not exist in 2001, although President Obama and others have argued that ISIS reconstituted itself in 2014 out of the remnants of al-Qaeda.

In October 2002, Congress passed, and President George W. Bush signed, a second resolution authorizing the use of military force against Iraq. This resolution "authorizes the President to use the U.S. armed forces to: (1) defend U.S. national security against the continuing threat posed by Iraq; and (2) enforce all relevant Security Council resolutions regarding Iraq."

But the United States is no longer at war with Iraq; in fact, the U.S. military is now training and advising Iraqi troops as they fight the Islamic State.

At Wednesday's hearing, Sen. Bob Corker (R-Tenn.), the Foreign Relations Committee chairman, said "multiple presidents" have, "by necessity," used the old 2001 AUMF to conduct hundreds of drone strikes around the world and put American troops on the ground in multiple countries.

"I have always believed that it is important for Congress to exercise its constitutional role to authorize the use of force and that our country is better off when Congress clearly authorizes the wars we fight," Corker said. "As a matter of fact we are approaching the day when an American soldier will deploy to combat under an authority that was passed before they were born."

Corker said there are very real reasons why Congress has been unable to pass a new AUMF:

"First and most importantly, the 2001 AUMF continues to provide our military with the authority they need to protect American citizens from varied world threats...I believe that the president has the authority under the 2001 AUMF to take action against ISIS, as the Obama administration repeatedly testified before this committee.”

Corker said the 2001 AUMF, “while stretched, provides the necessary legal authority for us to continue this fight. We should not risk its expiration without a replacement,” he said.

Corker also warned that some members of Congress will use the AUMF debate to impose limitations on the president, while others will refuse to limit the president in any way.

"And finally, many argue that while passing an AUMF may not be a legal necessity, it's a moral one. They believe that Congress must fulfill its constitutional duty of authorizing war and show the men and women fighting around the world that their elected representatives support the war." Corker said he shares those sentiments but believes "we must guard against an outcome that could have exactly the opposite effect."

Ranking Member Ben Cardin (D-Md.) said the latitude provided by the 2001 and 2002 AUMFs has been "stretched far beyond what Congress intended."

"We are now 16 years beyond the 2001 AUMF, and yet it continues to be used as justification for a wide range of military operations. This includes military operations against terrorists in the Middle East, Africa, and elsewhere, whose connections to al Qaida are tenuous at best.”

Cardin said Congress cannot dodge its responsibility to express itself on the use of military force. He noted that the most recent U.S. activities in Syria have nothing to do with the terror attacks of 2001.

"These AUMFs are now becoming mere authorizations of convenience for presidents to conduct military activities anywhere in the world,” Cardin said. “This is no longer acceptable. To (allow) this situation to continue is dereliction of Congress's duty under the Constitution to direct and regulate the president’s use of his commander-in-chief authority in activities of war.

“It is an evasion of our responsibility to the American people to ensure that the United States does not stumble into war or involve itself in ill-conceived wars that are not ours to fight or do not comport with the interest, needs, values and principles of our great nation."

Cardin also complained that President Trump has not yet told the American people what his strategy is for defeating ISIS in Iraq, Syria Afghanistan and elsewhere: “What we see instead is the president delegating his most vital responsibilities to others to decide what military operations are conducted and how many U.S. troops are to be committed to combat in foreign countries.”

Also See:

Rand Paul, Barbara Lee, Tim Kaine: 'Unconstitutional'; Schumer Tells Trump, 'Come Up With a Strategy' (April 7, 2017)

DOD: Military Action in Libya Now Authorized by 2001 AUMF (August 2, 2016)

Rep. Barbara Lee: 'Country War'; Obama 'Needs That Authorization' (May 5, 2016)

Trump: 'It Wouldn't Bother Me at All' to Ask Congress for Declaration of War (May 24, 2016)

Sen. Tim Kaine: 'We Have Made a Complete Hash of the...Doctrines of War' (April 29, 2016)

Senator Wonders If Obama Needs War Declaration to Take Out Assad's Air Force (April 29, 2016)

DOD: Obama (Again) Used 2001 AUMF Against Al Qaida to Go After ISIS in Libya (Feb. 22, 2016)

Sen. Kaine: U.S. 'At End of 9th Month of an Undeclared, Unauthorized War' (May 8, 2015)

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