Defense Secretary James Mattis and Secretary of State Rex Tillerson laid out three conditions on Monday that they want Congress to follow should it pass a new war authorization, while maintaining the administration believes it already has sufficient legal authority to wage war.
Specifically, Tillerson and Mattis told the committee that a new war authorization should not have time constraints or geographic constraints. They also said the 2001 authorization for the use of military force (AUMF) should not be repealed until a replacement is in place.
The 2001 AUMF “remains a cornerstone for ongoing U.S. military operations and continues to provide legal authority relied upon to defeat this threat,” Tillerson said at the top of a Senate Foreign Relations Committee hearing.
“However, should Congress decide to write new AUMF legislation, I submit to you today several recommendations that the administration would consider necessary to a new AUMF.”
Mattis added that 2001 AUMF, as well as the 2002 AUMF, “remain a sound basis for ongoing U.S. military operations” but that “any new congressional expression of unity, whether or not an AUMF, would present a strong statement to the world of America’s determination.”
The Trump administration relies on the 2001 AUMF for legal authority in the war against the Islamic State in Iraq and Syria, as did the Obama administration before it. Both also intermittently cite the 2002 AUMF that authorized the Iraq War.
The 2001 AUMF authorized military actions against al Qaeda, the Taliban and other perpetrators of the Sept. 11 terrorist attacks. Proponents of using it against ISIS argue that the terrorist group grew out of al Qaeda, while opponents highlight the two groups’ public falling-out as well as the fact that ISIS did not exist in 2001.
Mattis and Tillerson are testifying amid scrutiny of the extent of U.S. military operations following the deaths earlier this month of four U.S. soldiers in an ambush in Niger.
Some lawmakers have said they were unaware of the extent of the U.S. military operations in Niger prior to the attack, which they say shows Congress needs to reassert its constitutional role in declaring war.
But deep divisions over issues such as whether to allow ground troops to be deployed and whether to sunset the AUMF in a few years have kept Congress from acting on a new authorization for years.
At the top of Monday’s hearing, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) appeared to cast doubt on Congress’s ability to pass a new AUMF, saying that Congress should not take it up if there are partisan divisions.
“We cannot risk undermining the legal foundation for this critical fight,” Corker said. “We must also be mindful that moving an AUMF without significant bipartisan support could send the wrong message to our allies and our adversaries that we are not united and committed to victory. So far Congress has been unable to bridge the gap between those who see a new AUMF as primarily an opportunity to limit the president and those who believe constraining the commander in chief in war time is unwise.”
Mattis and Tillerson told the committee that sunsetting the AUMF would not support a conditions-based approach to war fighting, such as what President Trump has adopted in Afghanistan.
Mattis said that’s because “war is fundamentally unpredictable” and it’s time to recognize that “we are in an era of frequent skirmishes.” Congress would still have oversight because it controls funding, he added.
“We are more likely to end this fight sooner if we don’t tell our adversary the day we intend to stop fighting,” Mattis said.
Geographic constraints, too, would not work, Mattis said, because “this is a fight against a transnational enemy.”
Tillerson added that the collapse of ISIS’s territory in Iraq and Syria means the terrorist group is likely to spread to other countries.
“The collapse of ISIS’s so-called caliphate in Iraq and Syria means it will attempt to burrow into new countries and find safe havens,” Tillerson said. “Our legal authorities for heading off a transnational threat like ISIS cannot be constrained by geographic boundaries. Otherwise, ISIS may re-establish itself and gain strength in vulnerable spaces.”
Under questioning from Sen. Ron Johnson (R-Wis.), Tillerson added that he does not believe Congress should place restrictions on ground troops, either.
“I do not think we can restrict operations given the way this particular enemy morphs, changes its tactics,” Tillerson said. “As we saw with the emergence of ISIS, we start with what might be a fairly limited group of terrorists who then are able to overrun large areas of territories and amass armies.”
Sen. Jeff Flake (R-Ariz.), who has proposed a new AUMF with fellow committee member Tim Kaine (D-Va.), took issue with Mattis and Tillerson’s call for one without a sunset date, saying that any concerns about signaling to the enemy are outweighed by Congress need to have a voice.
“Congress needs to weigh in,” Flake said. “We have to make sure that our adversaries and our allies and most importantly our troops know that we speak with one voice.”