Questions that Should Be Asked at Today's Senate AUMF Hearing

By Robert Chesney
Wednesday, May 21, 2014, 9:10 AM

The Senate Foreign Relations Committee has a hearing this morning concerning the future of the AUMF, featuring DOD General Counsel Stephen Preston, State Department Principle Deputy Legal Adviser Mary Macleod, Harold Koh, and Michael Mukasey.  As it happens I'm in DC with some free time this morning, so I'll do my best to be there and report back afterward.  But since they don't take questions from the floor at these things, I thought I'd take this occasion to pitch a few questions that I hope the Senators will ask:

  • The President famously stated last year that there is a distinction between the use of force in a hot battlefield and using force elsewhere, and that as a matter of policy constraint the United States would only use lethal force outside the hot battlefield where the risk of civilian casualties is nearly zero, where capture is not feasible, and where the target poses a threat to American lives.  Is this still the policy?
  • Does the administration still consider Afghanistan to be a "hot battlefield"?
  • If so, what criteria will determine whether it remains a hot battlefield from 2015 forward?
  • Does the administration currently consider Yemen to be a "hot battlefield"?  What about Somalia?
  • Are there any locations other than Afghanistan that the administration considers a "hot battlefield" today?
  • Assume the AUMF is repealed.  Is there any circumstance in which the United States still could use lethal force for counterterrorism purposes, pursuant to the President's Article II self-defense authorities?  If so, what are the boundaries of that authority?  And how does the scope of that authority differ, if at all, from current US policy governing the use of force outside of Afghanistan?
  • Does the administration take the view that the end of the AUMF is the same thing as the end of the armed conflict with al Qaeda?
  • Can the AUMF be declared terminated by the President acting alone?  If so, can it also be terminated solely as to a specific group (but not others)?
  • What are the specific metrics that are used to determine whether an armed group has "joined the fight" against the United States, alongside either core al Qaeda or the Taliban, such that the group qualifies as an "associated force"?  Is it enough for a group leader to pledge loyalty to al Qaeda?  To adopt the al Qaeda brand?  For there to be intelligence indicating that members of the group may be interested in carrying out an operation targeting US persons?

There is so much more that would be worth asking.  Asking these questions would certainly make for an interesting hearing, however!