US NEWS & WORLD REPORT 05/24/13
By Michael Shank and Matthew Southworth
As President Barack Obama defended the nation’s ever-evolving counter-terrorism policy yesterday at the National Defense University and opened the parameters for military action in places outside of the traditional battlefield, the risk of writing into law permission for warfare any time, any place and anywhere – and without appropriate (if any) checks and balances – increased tenfold.
Calls for a complete rethink on America’s so-called “war on terror” and its accompanying and unfettered ability to wage war wherever, through the Authorization for Use of Military Force, have been made across the board, most recently by former Obama administration official Harold Koh and by the president himself on Thursday. They should be heeded immediately, especially by members of Congress.
After the Iraq and Afghanistan wars, some in Congress support continued and expanded operations in places like Yemen, Pakistan, Libya and Mali, which have seen a recent increase in U.S. military action. But what is afoot in Congress is much more dangerous: a blanket expansion for the use of force that is not only unnecessary, but too far reaching and absent any oversight and transparency.
Mission creep is becoming a serious problem. We are now employing military action, through our often-covert special forces, in 92 countries. This is according to statistics provided by the Special Operations Command.
Why the growth in U.S. military operations globally? After the attacks of September 11, Congress almost unanimously passed the force authorization, which originally sanctioned the U.S. war in Afghanistan, but has since served as the legal cornerstone for the so-called U.S. “war on terror” and is used to justify operations involving alleged militants –known vaguely as “associated forces” – in Pakistan, Yemen, Somalia, Mali and elsewhere.
There is no question that the 2001 law has become outdated. But the solution isn’t to expand the law or create a new one. Is the U.S. really at war with all groups “associated” with al-Qaida? What constitutes association and who verifies that association? If the Syrian group Jabhat al-Nusra, part of the Syrian opposition to President Bashar Assad, is affiliated with al-Qaida in Iraq, are we then at war with the same Syrian rebels that Arizona Sen. John McCain – a leader on revising the current law – hopes to train and arm?
One can see how quickly the waters get muddy. Going forward, and for clarity’s sake, there are several sticky points that must be resolved immediately, whether or not the authorization law gets repealed, which would be the ideal, or simply revised, which is less ideal but more likely.
First, the law is entirely unnecessary. If America merely follows pre-existing U.S. law authorizing war, it becomes unnecessary to authorize an unlimited blanket use of force. Congress can take action (as it did in 2001) to quickly pass an authorization when appropriate, when a known threat is identified. This is how war has been authorized for generations. It’s called due process. Besides, the president, under Article II of the Constitution, has the authority to defend the country without an Authorization for Use of Military Force.
Second, the authorization is too far reaching. Congress should certainly set a threshold for the use of force. An updated authority should rein in, not expand, existing administrative authority. This would mean a move away from “associated forces” and “belligerent” language toward “threat capacity” and “imminence” language. This process could be done within the administration, but should require some kind of mechanism for congressional reporting.
Why is it critical to change the language? The administration should be able to provide evidence (through multiple sources of intelligence, not just drone surveillance) that a group or individual has both the capacity and imminent intent to attack the United States or U.S. assets before it can conduct a strike or deploy Special Forces units. The evidence could be reviewed internally and reported to the appropriate congressional committees for further oversight.
This brings us to our third point. The authorization law lacks oversight. To further increase transparency, all Department of Defense reporting on lethal strikes – currently optional – should be made mandatory. Unclassified or redacted versions of reports could also live online somewhere in the public domain. This could include making the muddled and unduly secret list of “associated forces” public. The public should not have to rely on investigative journalism to know what is happening around the world in their name and on their dime.
The right thing for Congress to do is to sunset the 2001 law and to return the checks and balances that previous policymakers put in place. Anything less undermines the very foundation of our democracy and ensures that America is forever at war.
Michael Shank, Ph.D., is the director of foreign policy at the Friends Committee on National Legislation. Matt Southworth is legislative associate for foreign policy at the Committee and serves on the board of directors for Veterans for Peace.