‘Forever war’ needs new rules

The United States lacks the legal, political and strategic guidance necessary to effectively prosecute its current overseas combat operations. The April 2018 missile strikes targeting Syrian government facilities were only the most recent example of the country’s glaring lack of coherence at the highest levels of government. For too long, subsequent presidential administrations have been unable to articulate a long-term strategy for their actions in the Middle East and elsewhere.

Without robust strategic and political guidelines built upon properly established legal authority, the Trump administration faces the risk of losing any gains made against the Islamic State or other national security objectives abroad. Getting back to effective foreign and security policy begins with passing legislation governing the use of force, specifically intended to provide the authority and political boundaries needed to develop successful and justifiable military strategy.  

{mosads}Implementing new legislation must begin with repealing and replacing the 2001 Authorization for the Use of Military Force. The 2001 AUMF has been rendered ineffective over the course of nearly two decades, during which its abuse and misapplication formed the legal basis for a seemingly endless series of misguided military campaigns increasingly removed from the legislation’s original intent.

The 2001 AUMF’s immediate intent was clear: to dismantle al Qaeda and the Taliban in Afghanistan in response to the 9/11 terror attacks. Yet nearly 17 years later, the AUMF is still being used to justify military operations targeting groups significantly removed from those responsible for 9/11 — a manifestation of the “associated forces” doctrine — and in locations well beyond Afghanistan or its surrounding territories. The prolonged use of the 2001 AUMF has led the U.S. military to undertake combat operations in Afghanistan, as well as Iraq, Libya, Pakistan, Somalia, Syria, Niger, Kenya, Yemen and elsewhere. The unchecked, elastic nature of the AUMF reinforces concerns that the United States may never be able to extricate itself from a deeply misguided “Forever War.”

A replacement AUMF must be carefully crafted in such a way that it sets an appropriate foundation for successful military planning while guarding against the misfortunes that plagued the 2001 AUMF.

At a minimum, a successful replacement AUMF must provide for four criteria:

• First, the legislation should identify authorized areas of operation to prevent geographic expansion. Such a parameter will force public deliberation of where and why the president is authorized to engage the U.S. military, should he or she seek to expand beyond the authorized territory.

• Second, unlike the 2001 AUMF, the replacement authorization must include sunset provisions that would force Congress to reauthorize or revise the legislation at regular intervals consistent with prevailing threats to American national security.

• Third, the AUMF must provide for politically defined end-state objectives that explicitly identify the strategic intent of the authorization, the national security threat to which it is a response, and the point at which its objectives are to be considered achieved.

• Finally, Congress must include guidance on operational appropriations designated for actions taken pursuant to the replacement AUMF. This will overcome the Department of Defense’s dangerous reliance on Overseas Contingency Operations Funding and establish a further check on the executive’s unfortunate tendency to commit more American blood and treasure than lawmakers originally intended.  

While it should remain the responsibility of the president to dictate an approach to the use of military force, a replacement AUMF will go a long way to rein in the tendency of the White House to rely on military force as a quick and relatively easy tool in pursuit of foreign policy and national security objectives. A replacement AUMF will publicly establish political boundaries surrounding legally authorized uses of military force and place accountability for the military’s political masters in the court of public opinion — and ideally, existing congressional oversight mechanisms.

We must remember that we do, in fact, live in a democratic country whose military deserves — and depends on — effective civilian oversight. Yet, a successful replacement AUMF will have to straddle the difficult balance between providing the legal and political guidance necessary for military leaders to develop strategy and infringing upon the decision-making independence necessary for the development and execution of military operations.

Transparency, accountability and preserving the separation of powers should be the foundational objectives of any new AUMF. The 2001 AUMF is outdated and fails to provide appropriate legal authorization or characterize the current threats to American national security with adequate precision. Perpetually relying on this authorization creates scenarios whereby statutory language is constantly being reinterpreted and expanded to suit new strategic and political ends — a dangerous precedent.

If U.S. troops are to remain engaged in combat operations abroad, a replacement AUMF is needed to clarify their scope, and more importantly, to provide appropriate legal authorization and politically-dictated strategic objectives.

Carlton Haelig is director of research and a fellow at the University of Pennsylvania Law School’s Center for Ethics and the Rule of Law (CERL). He is one of the Center’s lead national security researchers, and focuses on the intersection of contemporary security studies, national security policy and strategy, and modern warfare.

Nicholas Saidel is a fellow at CERL. He previously was associate director of the university’s Institute for Strategic Threat Analysis & Response. Prior to joining Penn, he was an associate at the law firm of Wolf, Block LLP, a legislative aide to Congressman Robert A. Brady (D-Pa.), and a fellow at the Foreign Policy Research Institute. The authors recently collaborated on a report, “Considerations for a New Authorization for the Use of Military Force.”