Thread by @HBrandonSmith

Starting soon: The 2001 AUMF and War Powers: The Path Forward

foreignaffairs.house.gov/hearings?ID=63…

.@RepGregoryMeeks: The 2001 AUMF has formed basis for CT ops in 20 countries against groups that didn't even exist on 9/11.

.@RepGregoryMeeks: Future AUMF must specify countries where ops can take place and no allow admins to add new entities without congressional approval. Also needs sunset clause or periodic requirements for reauthorization, reporting requirements to bolster transparency.

.@RepGregoryMeeks: We owe it to our constituents to represent their voice on when military force should be exercised. Also owe it to our armed forces.Need to reclaim Congress's war powers granted in the Constitution. Our responsibility to make these difficult and trying decisions

.@RepMcCaul: War should not be on autopilot, as the have the last 2 decades. Wants to replace 2001 AUMF with updated authority. President Biden must also comply with requirement to report twice a year on operations conducted under 2001 AUMF.

The reporting requirement @RepMcCaul is referring to is found in sec. 1285 of the FY2020 NDAA, now codified in 50 U.S.C § 1550: law.cornell.edu/uscode/text/50…

Here's what sec. 1285/50 U.S.C § 1550 requires:

.@wendyrsherman: President Biden is committed to being transparent about when, where, why, and how the U.S. uses military force. Is also committed to replacing AUMFs with narrow and specific framework.

.@wendyrsherman: 2001 AUMF is not a blank check. Doesn't authorize President to use force against any terrorist group in the world. Have provided Congress with a list of groups being targeted under it.

.@wendyrsherman: Also recognize 2001 AUMF is being used in a way Congress "did not anticipate" when it passed it. It is critically important that we maintain an AUMF against ISIS, AQ and other groups that threaten our national security.

.@wendyrsherman: Congress should consider establishing mechanisms for it to periodically review groups covered by AUMF.

Note: A sunset would do this.

No other witnesses are giving oral statements due to time constraints.

.@RepGregoryMeeks: Can the 2001 AUMF be applied to Russian aggression in Europe?
Visek & Krass: No

.@RepGregoryMeeks: This Committee has been slow to receive the 1550 reports on who force is being used against under the 2001 AUMF.

Worth noting that this information is required to be provided in unclassified form. Hopefully this will be released to the public soon.

.@RepMcCaul: Seems that Article II is being exercised because we don't have an AUMF that is sufficient. Thinks should address threat from Iran.

.@BradSherman: Is War Powers Resolution constitutional and binding on the president?

Visek: Act consistently with the WPR. Haven't discussed with colleagues.

.@BradSherman: Rep. Sherman saying if admin doesn't consider WPR binding, is acting as an imperial presidency that can do whatever they want.

Should repeal 2001 AUMF. If president wants to use force against any other groups, should come to Congress.

Lots of discussion on Ukraine happening now. Disappointing to see the administration promoting the continuation of military operations to counter terrorism after @POTUS proclaimed that American is "not at war."

nytimes.com/2021/09/22/us/…

.@davidcicilline: What would the narrow and specific AUMF replacement framework look like?

@wendyrsherman: Open to discussing with Congress. Should address how it will apply to terrorist groups beyond those identified in the text & periodic review of the groups and locations.

@POTUS @davidcicilline: What would the narrow and specific AUMF replacement framework look like?

@wendyrsherman: Open to discussing with Congress. Should address how it will apply to terrorist groups beyond those identified in the text & periodic review of the groups and locations.

.@wendyrsherman: Admin doesn't support sunset clauses in replacement AUMF. Concerned about signal to adversaries.

This is deeply disappointing. Even Obama's ISIS AUMF included a sunset date: obamawhitehouse.archives.gov/sites/default/…

Legal experts on both sides of the aisle have called for sunsets in AUMFs. Both the @lawfare draft AUMF and @JustSecurity AUMF principles recommended including sunsets in AUMFs. As @BobbyChesney testified in 2015:

FYI, @lawfare draft AUMF is available here: lawfareblog.com/draft-aumf-get…

And the @JustSecurity AUMF Principles are here: justsecurity.org/wp-content/upl…

Also, @jacklgoldsmith @rgoodlaw & @steve_vladeck wrote this op-ed on the intellectual consensus around 5 principles that should govern any AUMF - including sunset date.

Again, very disappointing to see the Biden admin stray from this consensus.

washingtonpost.com/opinions/five-…

.@RepSusanWild asking about the use of "associated forces" to add more groups to the 2001 AUMF. Asks if there are any other conflicts around the world where that definition applies.

GC Krass answers that al-Shabab in Somalia is an example of where associated forces applies. @RepSusanWild asks if there are other conflicts that the term is applied to. @DeputySecState says yes & there are others but she'd have to look through her notes to name other groups.

.@repdinatitus: Discussing the civilians who have been killed in operations under the 2001 AUMF, including the recent Kabul strike. What have we been doing to protect civilians?

CG Krass says @dOd is implementing lessons learned. Meier discusses 90-day review. @repdinatitus asks if there will be a public report. Meier says yes.

.@repdinatitus: @POTUS has said he wants to close GTMO but only one prisoner has been moved. How will he expedite this process or is this no longer the plan?

.@DeputySecState and GC Krass say closing GTMO remains a priority and the admin is doing all they can to close it consistent with our national security.

.@RepColinAllred: It is important for democracies to debate the use of force. How does the admin view Iranian-backed proxies. Are the associated forces? Covered by Article II?

.@DeputySecState: We are not seeking a war with Iran. The operations against Iran-backed militias do not represent ongoing hostilities with any particular group.

.@RepMeijer: ISIS had nothing to do with the 9/11 attacks. When we dropped bombs in Libya in 2011, the 2001 AUMF wasn't used to justify this.

GC Krass: Authority claimed was Article II.

Rep. Meijer notes that Art. II is usually understood to provide authority for self defense.

.@RepMeijer: Under 01 AUMF have bombed groups that didn't exist on 9/11, groups that were fighting AQ, bombed Libya but said didn't need an AUMF. Could a future admin stretch associated forces definition to shoehorn Russia into the AUMF/say it wasn't hostilities like in Libya?

Unfortunately @RepMeijer's time expired and we didn't get an answer to his last question. But it was an important one, which Congress should be thinking about.

Rep Castro asks if any group that has been labeled an "associated force" has ever been removed from the list? Witnesses say none have been removed.

Rep. Castro: Unclassified sec. 1264 doesn't discuss countries where force is being used under the 2001 AUMF. Asks why this wasn't made public.

Visek says that he will look into whether some of this info can be made public.

.@Ilhan: How many countries do we have active operations in pursuant to the 2001 AUMF?

Meier: Up to 20 countries at various times.

.@Ilhan: Have we added or removed any groups to the 2001 AUMF during the Biden admin?

Visek: Not to my knowledge.

.@Ilhan: In Cameroon, Niger and the wider Sahel, troop deployment haven't generally been understood to be authorized under the 2001 AUMF but there have been incidents there claimed under this authority. Do you believe Congress has authorized force in these countries?

GC Krass: Force is authorized in these countries if the groups are considered associated forces of AQ.

Interesting response. Those who attacked U.S. forces in Niger weren't considered associated force of AQ. They were labeled "elements of ISIS."
state.gov/wp-content/upl…

.@RepAndyLevin: 2001 AUMF was enacted over 2 decades ago. Vast majority for currently serving reps have never debated costs & consequences of war. More that 920,000 killed, 337,000 civilians, $8 trillion in costs according to @CostsOfWar

.@RepAndyLevin: Terrorist attacks have increased fivefold since 2001. One of key reasons for Congress not assessing 2001 AUMF and these costs is because of lack of sunset clause. Disagrees with @DeputySecState and says we need a sunset clause in any AUMF.

.@RepAndyLevin: At some point, it's Congress's duty to take action and decide when we will put people in harm's way and when we will authorize the use of military force.

.@RepSpanberger: What is the current status of the Biden admin's view of the 2001 AUMF and its utility.

.@DeputySecState: 2001 AUMF is outdated, want to replace with narrow and specific framework.

.@RepSpanberger: Notes Rep. Levin discussed "over the horizon" strikes. Asks for info on specific actions being undertaken under 2001 AUMF.

For more on over the horizon strikes, see this great post from @rosen_br: justsecurity.org/78818/the-long…

.@DeputySecState: Still threat from ISIS-K, necessary to have "over the horizon" strikes in Afghanistan.

.@RepSpanberger: If we were to halt the geographic scope of the 2001 AUMF would this have any impact on ability to protect U.S.?

@DeputySecState: Discusses the need for a new framework. Would be fact specific about whether would need to expand geographic scope of AUMF.

.@RepAndyKimNJ: Given operations over the last 20 years, should we have had a sunset date to give Congress opportunity to debate operations>

@DeputySecState: Sunset clause would interrupt the ability to continuously deal with these threats. But "periodic review" would be helpful

.@RepAndyKimNJ: What have we learned from the concept of "associated forces"? Have seen how this can expand in ways that weren't envisioned when AUMF was passed.

Visek: The longer the threat persists, the more opportunities for groups to splinter/morph. Need mechanism to add new groups and take groups off the list in consultation with Congress. Transparency in the process is important. Periodic reviews would get at this.

.@RepAndyKimNJ: Difficult to think through this situation of inheriting AUMFs from previous Congresses and not getting the opportunity to evaluate them. Feels like a lot of opportunity for slippery slopes. would like to keep the conversation going.

.@RepYoungKim: War Powers Resolution says the use of force cannot be authorized by any treaty. Do you agree that the president needs authorization from Congress to send troops to protect Ukraine?

Visek: Factually dependent. Would need important national interest and action + anticipated response not reasonably expected to rise to level of war.

Note: This is a very broad view of the president's Article II powers. Critique of national interest test: lawfareblog.com/olcs-meaningle…

.@RepSaraJacobs: Echoed sentiments of colleagues about sunset clause. Was in middle school when 2001 AUMF was passed. There needs to be some kind of forcing mechanism for us to reconsider these decisions.

.@RepSaraJacobs: Concerned about reports of civilian casualties and that DoD doesn't presume civilian status in absence of contrary evidence. Is a requirement of customary int'l law. Asks GC Krass if she will commit to reviewing this in DoD Law of War Manual & other guidance?

GC Krass says "yes I will" (commit to reviewing the presumption of civilian status in the absence of evidence to the contrary in the DoD Law of War Manual and other relevant guidance)

So important. More on this issue from @rgoodlaw here: justsecurity.org/80147/clear-er…

.@RepSaraJacobs: @CostsOfWar program notes there are about 20 127e and 1202 programs around the world. How does DoD interpret its war powers resolution reporting requirement in relation to these programs?

@RepSaraJacobs notes that these programs have put U.S. troops in hostilities, e.g. the 2017 Niger incident: nytimes.com/2018/05/10/wor…

GC Krass: Doesn't see 127e and 1202 programs as authorizations to use force.

.@RepSaraJacobs: Civcas have led to recruitment to terrorist groups. How does DoD deal with this issue?

Maier: Overall assessment is the threat to Americans has gone down. Sometimes members of groups have gone up but we look at it from perspective of threats to Americans.

.@RepSaraJacobs: Looking at these CT operations going on through most of my life, it doesn't seem we've been that successful in ameliorating these violent extremist groups. Thinks we need to look at how effective these operations are.