Sword of Damocles: Reviewing the 2018 AUMF

This legislation, especially the AUMF of 2002, hasn’t just tarnished the country’s reputation internationally and cost trillions of taxpayer dollars, but has directly caused the deaths of thousands of American soldiers.

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On April 16th, the draft of the 2018 Authorization for the Use of Military Force (AUMF), created by Senators Bob Corker (R-Tenn) and Tim Kaine (D-Va.) and sponsored by two other Senators from both major U.S. political parties, was made public. This document, intended to clarify some of the powers to use military force by American presidents, especially in the Greater Middle East and Africa, was obviously deemed unimportant by most of the American news media, who ignored it.

The tortuously worded Corker-Kaine bill is expected to replace and expand the number of countries and groups covered by the much shorter AUMF passed on September 14th, 2001.

While the 2001 law, officially known is Public Law 107–40; 50 U.S.C. 1541, doesn’t specifically name Al Qaeda or the Taliban, it’s quite clear about those that it is allowing the Executive to go after, stating, “…the President is authorized 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.”

The main positive that one can immediately glean from reading the 2018 AUMF is that it would repeal the separate AUMF related to the Iraq war, passed in 2002. This should limit the U.S. government’s ability to act unilaterally in that country, inargueably a good thing.

The 2001 AUMF came as the American public, including legislators, were reeling from the trauma of that late September day, so the wide latitude given the Executive to respond then was understandable, if ill advised. In the years since, its authority has been used to go after a wide variety of groups with no connection to the attacks it was meant to respond to, something that the Corker-Kaine bill, to its credit, tries to address.

As Representative Barbara Lee (D-CA), the only member of Congress to vote against the 2001 AUMF, explained to Democracy Now’s Amy Goodman in 2016, “I voted against that resolution 15 years ago because it was so broad that I knew it was setting the stage and the foundation for perpetual war. And that is exactly what it has done.”

The effects of these authorizations, along with some controversial sections included in annual NDAAs (National Defense Authorization Acts) in the almost two decades since, have, as Representative Lee predicted, expanded military operations in countries where the United States is not officially at war, often against groups that didn’t yet exist when the 2001 and 2002 AUMFs were passed.

This legislation, especially the AUMF of 2002, hasn’t just tarnished the country’s reputation internationally and cost trillions of taxpayer dollars, but has directly caused the deaths of thousands of American soldiers, maimed tens of thousands of others, created an ongoing epidemic of suicide among veterans and led to widespread mental illness that many former service members will suffer with for the rest of their lives.

Then there’s the devastation inflicted on the civilians in foreign nations by what are euphemistically called ‘kinetic actions’, whether from drone strikes and raids by special forces or major bombing campaigns that have destroyed vital infrastructure and even reduced whole cities to rubble.

As a point of comparison, imagine if, in responding to similar Salafist terrorism emanating from the Caucuses in the late 1990s, the Russian government had launched strikes and continuing operations in two countries, later extending these operations to four more, claiming that those targeted were ‘associated’ with Chechen separatists, even when this obviously wasn’t the case.

Codifying the long war

Because the 2001 AUMF is so open-ended and doesn’t contain a ‘sunset provision’ or conditions for victory, it’s obviously important for American federal legislators to revisit it. However, despite what the Corker-Kaine bill’s creators and sponsors may say, specifically naming and expanding the number of places and groups the Executive can legally target and offering presidents a process to include more, just doesn’t seem like an effective strategy for limiting the possible ill effects of presidential (and military or intelligence) overreach, a worry that has been greatly exacerbated by the strange behavior of the current occupant of the White House.

Instead, rather than reining in presidential power in measurable ways over its 20 pages, the new AUMF continues the long running process of reversing the constitutional roles of the executive and legislators in terms of authorizing the use of military force. Worse, in some cases, groups targeted under the law could be classified, thus denying a public debate regarding their inclusion on the list.

As explained on the web-site Defense One, “If the president designated a new enemy group or theater of war, the bill would require him to report the expansion to congressional committees. The report could include a classified annex, which means that in practice, the president alone would decide how much information to make public.” (emphasis mine)

Another big problem with the 2018 AUMF is that it allows for action to be taken against what have historically been very loosely defined ‘associated forces’, already used by previous presidents to expand the number of both groups and countries where targeted actions have taken place, most with no connection to the attacks on Sept. 11th, 2001.

The process of crafting the new AUMF really got started after an attack that killed four U.S. soldiers in Niger last October, a country where many in the U.S. Congress claimed they had no idea U.S. troops were deployed. The group there, an offshoot of ISIS called the Islamic State in the Greater Sahara (ISGS), isn’t named in the new AUMF but would certainly call itself an ‘associated force’ even though it’s mainly comprised of disaffected Fulani pastoralists whose dire poverty surely limits their reach.

If the president were to designate the ISGS under the terms of the new AUMF, the U.S. would essentially declare war in Niger, and, because the border between the two countries is so porous, Mali as well, possibly adding these and other nations in the Sahel to the six already listed in the new authorization: Afghanistan, Iraq, Syria, Somalia, Yemen and Libya. Needless to say, there is no requirement for the government of any nation where these operations might take place to consent to them.

Worse, the new AUMF appears to give the president a window to take action in a new country before submitting a report to Congress, requiring it only, “48 hours after the use of military force in a new foreign country pursuant to this joint resolution”.

As Jon Schwarz of the Intercept recently explained, the Corker-Kaine bill could also allow the executive to use the military to indefinitely detain without trial even U.S. citizens within the United States secretly accused of being associated with those groups designated as hostile in the authorization or added later.

While backers of the 2018 AUMF claim, “that the Corker-Kaine bill attempts to make it easier than it would normally be for members of Congress to force the vote on such presidential designations” as Schwarz goes on to tell readers in the article cited above, “…it would not require such a vote, and in any case, Congress would almost certainly need a two-thirds supermajority in both houses to override a presidential veto and reject a designate – so in practice, it would be near impossible.”

Even the ability to repeal or change the AUMF is placed in the hands of the Executive as spelled out in part in Sec. 4, ”Quadrennial Review of the Authorization for the Use of Military Force”, which states, “On January 20, 2022, and again every 4 years thereafter the President shall submit to Congress a report regarding the use of military force pursuant to this joint resolution, which shall include a proposal to repeal, modify, or leave in place this joint resolution.”

While this once every four year review is better than nothing, it still leaves the president alone with the option to change or end the powers bestowed by the AUMF and when have we ever seen a U.S. president give up power?

For all we hear about the unique danger that the current U.S. President represents to American democracy, which in terms of environmental policy or the use of the military in a still growing number of countries is certainly true, these aren’t the issues that the mainstream American media are focusing on. It’s just one person’s opinion but after reading the new AUMF, this writer has come to the conclusion that, if passed, it will further expand the power of presidents to use military force in more and more places, rather than limiting it and mandating greater oversight on the part of Congress, whatever its authors’ may have intended.

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