A pretty remarkable development in today's House Appropriations markup on the Defense Appopriations bill. For many years, Rep. Barbara Lee (D-CA) has been putting forward amendments intended to repeal or sunset the 2001 AUMF. They normally do not go anywhere. This morning she moved one that would terminate the 2001 AUMF in 240 days, and lo-and-behold the majority went along with it. It passed with only Kay Granger (R-TX) opposing.
Latest in AUMF
The Senate Foreign Relations Committee held a hearing today on a new Authorization to Use Military Force Against terrorist groups. Kathleen Hicks, former Deputy Under Secretary of Defense for Policy, and I were the witnesses. My written statement is here. Kathleen Hicks’ written statement is here.
I closed my opening statement as follows:
Early Sunday evening, a US Navy F/A-18 Super Hornet shot down a Syrian Air Force Su-22 that had just completed a bombing run targeting US-backed Syrian Democratic Forces (SDF) in the Raqqa region. The episode raises important questions under the U.N. Charter (see Adil Ahmad Haque’s analysis here). But what about U.S. domestic law?
Senator Jeff Flake (R-AZ) and Senator Tim Kaine (D-VA) have introduced a new Authorization for the Use of Military Force against ISIS, al Qaeda, and the Taliban.
The White House Releases a "Report on the Legal and Policy Frameworks" on American Uses of Military Force
Last year, Kenneth Anderson and I published a book entitled, Speaking the Law: The Obama Administration's Addresses on National Security Law, which is a detailed analysis of the Obama Administration's national security law views, as seen through the lens of a body of speeches given by senior administration officials.
Earlier this week, the New York Times published a story by Charlie Savage, Eric Schmitt, and Mark Mazzetti informing us that the Obama administration had changed its interpretation of the 2001 Authorization for the Use of Military Force to more broadly cover the use of force against al-Shabaab, expanding its previous reading of the AUMF as only authorizing force against members of al-Shabaab individually linked to al-Qaeda.
With less than two months to go before it hands over power to the Trump administration, the Obama administration is continuing to fine-tune the legal, policy, and institutional architectures that guide its approach to the ongoing conflict with al Qaeda. Under that heading, I want to flag some important recent developments.
1. AUMF expansion: al Shabaab is now a full-fledged "associated force"
Rebecca Ingber (international law professor at Boston University and Lawfare contributor) has posted a new draft paper to SSRN (forthcoming in 42 Yale Journal of International Law No. 1, 2017), titled “Co-Belligerency.” It’s an excellent and thoughtful article particularly relevant to the 15th anniversary of 9/11. Its topic, as the title indicates, is co-belligerency, in the context of analyzing what groups the U.S.
The country’s reaction to the heartbreaking massacre in Orlando has been dispiritingly predictable. When guns—and seemingly no other weapon—are involved in a national tragedy, initial talk of unity rapidly devolves into talking points on both sides. Often the political talk is for naught: Monday, the Senate voted down four measures aimed at curtailing the sale of guns to suspected terrorists.
Last week, U.S. Army Captain Nathan Michael Smith sued the U.S. Government in federal court, seeking a declaration that Obama’s war against ISIS is illegal. Jack Goldsmith and Marty Lederman have put forward competing views over whether this lawsuit is a big deal.