The Future Of The President's Authorization For Use Of Military Force

Oct 30, 2017
Originally published on October 30, 2017 8:10 am
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DAVID GREENE, HOST:

When President Trump orders the U.S. military to act against terrorist groups like ISIS, he does so with permission from Congress - well, sort of.

RACHEL MARTIN, HOST:

After the 9/11 attacks, Congress passed an Authorization for the Use of Military Force, or AUMF. Today, though, the enemy is different. Many people in Congress weren't in Congress back then, but the president is still using that same authorization.

GREENE: The October 4 ambush in Niger that left four U.S. soldiers dead has really ratcheted up calls on Capitol Hill for a new legal basis to carry out military action overseas.

MARTIN: And this is a big day for this debate. Secretary of State Rex Tillerson and Defense Secretary Jim Mattis will testify before the Senate Foreign Relations Committee.

GREENE: And we're going to hear this morning from a lawyer who helped craft the 9/11 Authorization for the Use of Military Force. John Bellinger was legal adviser to the State Department and National Security Council under President George W. Bush, and he joins us. Good morning.

JOHN BELLINGER, III: Good morning, David.

GREENE: So why does this thing that you helped craft 16 years ago need to be replaced?

BELLINGER: It's gotten to be very long in the tooth 16 years later. It's been stretched by three successive presidents far beyond, I think, Congress' original intent. It's - on the one hand, it's very broad. It authorizes all necessary force against the persons, organizations and nations who are responsible for the 9/11 attacks. But it is limited to the 9/11 attacks. And 16 years later, it's been used by presidents in a variety of different countries, a variety of different groups and, most recently, against ISIS. So members of Congress on both sides of the aisle have been increasingly concerned - as have I - that the original congressional authorization does not address the threats that we face today.

GREENE: Well, what exactly is the danger of that, using an authorization that does not specifically address threats? What are you worried about?

BELLINGER: Well, there's both a legal concern and a constitutional concern. The legal concern is that if members of ISIS or of a new group today are detained and then challenge their detention as not being authorized under the original authorization that they might have a very good argument.

GREENE: They could do that? A judge could say, OK, you make an argument that this conflict wasn't authorized, so we're going to let you free?

BELLINGER: Potentially, yes. For example, there are members of ISIS who are being detained right now by the military and who may challenge their detention. One of the arguments that they could certainly make would be that the original authorization was against those groups or persons who committed the 9/11 attacks and that we are a new and different group, and so there's not a congressional authorization for our detention. Of course, the president has additional constitutional powers, but there is some legal concern that the original 2001 authorization doesn't cover groups like ISIS that have emerged today.

And there's also a constitutional concern, which is I think what's most troubling to members of Congress like Tim Kaine and others, that only a third of the sitting members of Congress today voted for the 2001 authorization. So the majority of members of Congress today didn't vote for this authorization, so they're really not backing the war that we are now fighting.

GREENE: Well, OK, so we have administration officials like Jim Mattis, defense secretary, Rex Tillerson, secretary of state - what are they going to say to Congress? I mean, there seem to be some mixed messages from the administration.

BELLINGER: Well, it's a good question. The administration has given mixed messages. Officially, they have said that a new authorization is not necessary. But both Secretary Mattis and Chairman of the Joint Chiefs Dunford have said that a new authorization would be useful to show congressional resolve and support for the troops. And I think that is probably what they will say today. They will say that the administration doesn't need a new authorization but that they would be willing to work with Congress on a new authorization.

GREENE: OK. You got to answer this question for me. You have the secretary of state, secretary of defense, who are going to at least say that they are open to this. You crafted this thing. You say there needs to be something new. A lot of lawmakers say there needs to be something new. Why have they been debating this for - what? - like, eight years now and they haven't just done it?

BELLINGER: Well, really two reasons - one, there is real political angst amongst members on both sides of the aisle about voting for a new authorization. They really politically just don't want to have to be on record as voting to authorize the use of force lest something goes wrong. And many members just really don't want to be backed into that corner. In addition, there is just disagreement, not just all Republicans versus all Democrats but amongst both Republicans and Democrats as to what a new authorization ought to look like - what groups should it cover; should it authorize any offensive measures or should it only be defensive; should it authorize boots on the ground?

So there has been both angst about passing a new authorization and disagreement about exactly what that ought to look like. But it does appear that a growing number of members, at least in the middle, support some kind of new authorization. Whether they can ultimately bring themselves together to agree on what that would look like and pass one - still not clear.

GREENE: Is there a risk in some version of a new authorization coming out and it actually tying the hands of the president and making it harder to have that flexibility to make quick decisions and fight a war against terrorists?

BELLINGER: Absolutely, and that's why there has been a concern in the - amongst the last three presidents about having Congress pass a new authorization lest it restrict the president's power. The 2001 authorization, while limited to the groups and persons who committed the 9/11 attacks, is still very broad. It doesn't limit the number of countries or the type of force. And so there has been a concern in both the Obama administration and now the Trump administration that if they were to work with Congress on a new authorization that it might actually end up tying the president's hands. So that's why the executive branch and the White House and both the Obama and Donald Trump administrations have been cautious about wanting a new authorization. It may be a question of be careful what they wish for.

GREENE: All right. John Bellinger was a legal adviser under George W. Bush and one of the architects of the Authorization for the Use of Military Force after 9/11. Thanks for your time.

BELLINGER: Thanks, David.

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