You might argue it’s time for an upgrade. The Obama Pentagon doesn’t want one.
The language of the 2001 Authorization to Use Military Force is “solid” and “sufficient to address the existing threats that I’ve seen,” Jeh Johnson, the Pentagon’s top lawyer, told the House Armed Services Committee on Thursday afternoon.
That may seem like the Obama administration is in the rare position of rejecting an expansion of its war-fighting powers. But although no one at the hearing is willing to say it, politics that are submerged barely beneath the rhetorical surface are driving Johnson’s antipathy to a renewed authorization. Here’s why.
Shortly after the November election, Rep. Buck McKeon (R – California), incoming chairman of the committee, gave a speech urging the new Congress to vote on a revised Authorization to Use Military Force. His case, endorsed in Thursday’s hearing by fellow GOP panelist Mac Thornberry, is straightforward. The 2001 authorization governs military force against those who “planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or person.” That’s much narrower than the scope of the war 10 years later.
It would be a stretch, for instance, to say that the authorization’s language covers drone strikes in Pakistan that target far more suspected terrorists than just al-Qaida’s top leadership. And it’s way more of a stretch to see it covering strikes on al-Qaida’s affiliate in Yemen, which didn’t exist until about seven years after 9/11 and has become a crucial focus of U.S. counterterrorism efforts.
Legal scholars are divided on whether the drone strikes are legal at all. So the House GOP is on strong footing to say that the administration has a deficit of authorization here, now that al-Qaida has mutated so much after 9/11.
But the Obama administration is wary of what Congress would put into a new Authorization to Use Military Force — especially now that the House is in Republican hands. Large bipartisan majorities in both houses have scotched the administration’s plans to close the detention facility at Guantánamo Bay.
The defense authorization passed by Congress before the end of the year explicitly blocked Obama from transferring any detainees from Gitmo into the United States for prosecution. And earlier this month, even after Obama disappointed his civil libertarian supporters with an executive order authorizing indefinite detention of terror suspects at Gitmo, the Republicans on the House military panel proposed a bill further restricting Obama’s authority to prosecute any detainee in civilian court.
If the Authorization to Use Military Force gets revised, the Obama team fears it’ll find its ability to use nonmilitary means of confronting al-Qaida slashed even deeper. That’s led it to sidestep Congress with measures like the executive order on detentions. All of a sudden, a president who came to power criticizing George W. Bush’s executive high-handedness is repeating his predecessor’s disregard for an inconvenient Congress, angering McKeon.
But the cost of avoiding another fight with Congress on war authority is to make it “incredibly difficult for you to authorize the actions most of us agree we need to take” against al-Qaida 2.0, Thornberry pleaded to Johnson. Johnson said he didn’t have an official administration position on renewing the authorization, but conceded “it is something we should seriously think about” — a bureaucratic brush-off.
Thornberry lamented — with good cause — that without a new vote, the administration would “stretch language beyond its real meaning” to go after al-Qaida. To say nothing of denying the American people, ten years after 9/11, a real debate about the scope of its world-spanning counterterrorism war, increasingly waged in the shadows.