Quick Reactions to Extraordinary Senate Armed Services Committee Hearing on the AUMF

By Jack Goldsmith
Thursday, May 16, 2013, 1:53 PM

I participated in an extraordinary hearing before the Armed Services Committee today on the scope of the AUMF.  Lawfare readers interested in the scope of the AUMF will want to watch the hearing video carefully (or read the transcript, when available).  I have not had a chance to watch the hearing video, and I won’t today.  According to my notes of the hearing (and thus this is all provisional, pending review of the tape) DOD officials:

  • Acknowledged that they had domestic authority to use force in Mali, Syria, Libya, and Congo, against Islamist terrorist threats there.  At first they strongly suggested that the AUMF provided the domestic authority, but at the very end one DOD representative tried to walk back that suggestion and said that the authority to use force in those places didn't necessarily rest (or some such formulation) on the AUMF.  As best I can tell he did not walk back the claim that some authority exists and that it might be the AUMF.
  • Emphasized that they were satisfied that current authorities suffice to meet the threat.  In light of the extraordinarily broad interpretation of extant authorities on display today, and the secrecy of AUMF determinations, it is hard to assess that claim.  DOD officials also said that they were actively considering emerging threats and stated that it was possible they would need to return to Congress for new authorities against those threats but did not at present need new authorities.
  • Discussed the “murkiness” and “shifting” nature of memberships and alliances among al Qaeda affiliates, and how challenging it is to make “associated forces” determinations under the AUMF.
  • Emphasized that the conflict authorized by the AUMF was not nearly over.  At one point one DOD official claimed that the end of the AUMF conflict was “a long way off.”  At another point an official said the conflict would last “at least 2-3 years.”  At another point an official used the figure of 10-20 years, although as Senator Levin pointed out this may have been a reference that included extra-AUMF Islamist terrorist threats, and not AUMF groups themselves.
  • Stated that they would provide the Committee with a list of terrorist groups covered by the AUMF.  (That should be an interesting (and probably classified) list.  But: Why does the Armed Services Committee – which supposedly receives regular briefings from DOD about the shadow war – not know the answer to that question!?)
  • Appeared to state that the legal determination of groups covered by the AUMF is made within DOD subject to inter-agency scrutiny.

My general impression of the hearing was that (1) DOD officials were very uncomfortable talking about how they interpret the AUMF and what groups are covered by it, (2) those officials interpret the AUMF very broadly, and (3) several members of the Committee were surprised by the breadth of DOD’s interpretation of the AUMF.  I came away thinking that Congress cannot address the problem of extra-AUMF threats until it gets a handle on how the AUMF is being interpreted and deployed.  I also came away thinking more than ever that Congress needs to re-engage in a serious way about the nature and scope of the conflict against al Qaeda and affiliates.  Amazingly, there is a very large question even in the Armed Services Committee about who the United States is at war against and where, and how those determinations are made.

PS: I want to emphasize again that I wrote this post quickly and the representations made above are based on my notes.  Anyone inclined to rely on my representations should first consult the actual hearing video.