A Baffling Hearing on Endless War

Members of Congress express frustration at lack of answers from top administration lawyers

Senator Tim Kaine
Chris Maddaloni/CQ Roll Call
Senator Tim Kaine pressed the government witnesses on what the AUMF does and doesn't mean.
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The Authorization for the Use of Military Force (AUMF), passed by Congress in the days following the attacks of September 11th, 2001, is a 60-word resolution granting the president the authority to use force against the "nations, organizations, or persons" who carried out those attacks, or nations that harbored such groups. It has served as the underlying legal rationale for nearly every military and intelligence operation by the U.S. for more than a decade; one journalist has called it "the most dangerous sentence in U.S. history." Rep. Adam Schiff (D-California) is reportedly preparing to introduce a measure to force the AUMF's expiration. And at a Senate Foreign Relations Committee hearing today, two top executive branch officials – top Pentagon lawyer Stephen Preston and Mary McLeod, a high-ranking State Department legal advisor – struggled to justify the law's continued usefulness.

Much of the hearing was a thick tangle of legalese, leading members of the committee to express their frustration with the lack of clear answers. Ranking Senator Bob Corker (R-Tennessee) called the hearing a "bizarre discussion" and repeatedly criticized the two witnesses for their confusing responses, at one point calling the hearing "not particularly gratifying."

What happens to justice in a perpetual war? Read our story and find out

The witnesses indicated that the Obama Administration believes it has the authority to take military action against "imminent threats" under the president's inherent self-defense authority, and appeared to minimize the role of Congress in determining where and when the president can use military force. When asked by Senator Tim Kaine (D-Virginia) "what could [the president] not do without the AUMF," Preston didn't have an immediate answer. Kaine then asked if the U.S. could continue to hold detainees at Guantanamo Bay if the AUMF were repealed. Preston dodged; McLeod added that the U.S. can continue to detain prisoners "as long as we're in an armed conflict with Al Qaeda."

While Preston said that he was "not going to tell you there are not differences" between the AUMF and the president's constitutional authority to protect the country, both witnesses struggled to clearly distinguish exactly what those differences might be. Preston wouldn't discuss the terrorist groups the administration currently considers itself at war with, saying "that would have to take place in a classified setting.

The discussion of whether the AUMF should be repealed or amended takes place as the Obama administration has come under increasing scrutiny for its surveillance activities following the leaks by former NSA contractor Edward Snowden, and as the U.S. prepares to remove most forces from Afghanistan by the end of 2014. The drawdown of combat forces in Afghanistan will not necessarily lead to the end of the AUMF, however.

Human rights groups have been nearly universally critical of the role the AUMF has played in counterterrorism operations since 9/11. "Over the past decade, the AUMF has played a role in torture, mass surveillance, extrajudicial executions with drones, and indefinite detention at Guantanamo. It's a central pillar of the U.S. government's fundamentally flawed 'global war' theory that weakens human rights protections for all of us," Zeke Johnson, director of the security and human rights program at Amnesty International, tells RS. "The law should be repealed. Armed groups should be countered through the criminal justice system in compliance with human rights standards."

Naureen Shah, legislative counsel at the ACLU, adds that "We've seen both Bush and Obama administrations use the law to justify claims that war is everywhere and anywhere. Instead, this law should expire with the end of the U.S. combat role in Afghanistan."

The AUMF passed nearly unanimously through both chambers of Congress after 9/11, with only Rep. Barbara Lee (D-California) voting against it. At the time she warned that "as we act, we must not become the evil we deplore." Lee has since argued for a bill that would require the president to inform Congress of every time the AUMF is invoked, and would include a sunset provision for the bill. 

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