Top Trump administration officials urged lawmakers on Monday not to unduly constrain the executive branch under a potential new authorization for the use of military force (AUMF).
Over and over on Monday evening, senators on the Foreign Relations Committee pointed to the legislative branch’s constitutional authority to declare war and Congress’s responsibility to provide oversight, while administration officials pointed to the president’s commander-in-chief title and nudged senators against micromanaging.
Secretary of Defense Jim Mattis suggested cautious openness to a new AUMF, but, along with Secretary of State Rex Tillerson, repeatedly hazarded senators against passing legislation that would hurt the president’s ability to respond to threats.
“Though a statement of continued congressional support would be welcome, a new AUMF is not legally required to address the continuing threat posed by al-Qaeda, the Taliban and ISIS,” Mattis told lawmakers during the AUMF-focused hearing. “Article II of our Constitution, the 2001 and 2002 AUMFs provide sufficient legal authority for us to engage and defeat the current threat.”
Proponents of a new AUMF argue that the 2001 authorization, which provides the legal grounds for action against groups linked to the 9/11 attacks, has been used too broadly. But lawmakers have long been splintered over the specifics of a new authorization, including whether it should set constraints on time, geographical area, or the groups targeted.
A core obstacle to passing a new AUMF, multiple lawmakers suggested, is distrust between the two branches.
“Congress has been unable bridge the gap between those who see a new AUMF as primarily an opportunity to limit the president and those who believe constraining the commander-in-chief in wartime is unwise,” Senate Foreign Relations chairman Bob Corker said. “Unfortunately, the inability to reconcile this divide without threatening the existing authorization has allowed the status quo to prevail.”
Senators have in recent weeks raised fresh concerns about congressional oversight as it relates to the scope U.S. military operations, after an ambush in Niger left four American servicemen dead. Mattis said Monday that those soldiers were on a train-and-advise mission authorized outside of the 2001 AUMF.
Mattis and Tillerson outlined a number of requests for a new AUMF in case lawmakers go ahead with a markup, as Corker suggested after the hearing. For one, the secretaries said not to repeal the current AUMFs before passing a replacement. They also asked for any new AUMF not to include time restrictions, in part because a so-called ‘sunset’ would give away valuable information to adversaries and allow them to use legal strictures against the U.S.
“War is fundamentally unpredictable,” said Mattis. “We cannot put a firm timeline on conflict against an adaptive enemy who would hope that we haven’t the will to fight as long as necessary.”
The administration has elsewhere sought to take a “conditions-based” approach to conflict rather than one based on an predetermined timeline.
Third, the secretaries asked senators not to impose geographical constraints—a point that Mattis said is based upon the nontraditional nature of today’s combat.
“This is a fight against a transnational enemy, one that does not respect international borders and does not place geographic limits on their areas of operations,” he said.
Lawmakers challenged administration concerns, especially Virginia senator Tim Kaine, who along with Arizona senator Jeff Flake has led the push for a new AUMF. Kaine and Flake in May introduced legislation that would authorize military force against ISIS, al-Qaeda, and the Taliban.
“To quote my colleague, we’re more than a feedback loop,” Kaine said, peering across the dais at Arizona senator Jeff Flake. “We should not be putting troops into harm’s way, and as Congress, standing back and trying not to have our fingerprints on this when it’s mutating all over the globe.”
Flake in turn pointed out that none of the members of the foreign relations panel voted in the Senate on the 2001 AUMF. “We can’t continue to go on in a situation where 70 percent of the House and the Senate has never voted on an AUMF,” he said.
Lawmakers on Monday also raised the question of what authority the president has should he choose to use force against North Korea.
Mattis and Tillerson agreed that Trump does not have congressional authorization to strike Pyongyang. But Mattis noted that Trump still has the constitutional ability to do so in case of an imminent or actual attack from North Korea.
“Under Article II, he has a responsibility, obviously, to protect the country. If there was not time, I could imagine him not consulting, or consulting as he’s doing something—along the lines, for example, of what we did at Shayrat airfield in Syria when we struck that and Congress was notified immediately,” Mattis said, referring to missile strikes against Syria in April. “In the case of North Korea, it would be a direct imminent or actual attack on the United States. I think Article II would apply.”
