Since 2001, the United States has been engaged in the nebulous War on Terror, a war with no clarity nor end in sight. The legal justification for this forever-war is what is known as an AUMF, or Authorization for the Use of Military Force.
Passed in 2001, the AUMF falls short of a declaration of war, for the purposes of circumnavigating certain constitutional and legal checks. Unsurprisingly, it’s legal jargon in its purest forum, as hostilities are legally a distinct category to war, but functionally the same. The 2001 AUMF authorizes the USA to engage in ‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons’.
Unsurprisingly for something this vague, the 2001 AUMF has been used and abused since its passing.
The main source of this abuse has been through continual reinterpretation of the act by the Executive, which has been able to twist the 2001 AUMF to mean pretty much any terrorist organization it wants, anywhere in the world. This has come through executive reinterpretation of the clauses ‘organization, persons…[that] planned, authorized, committed, or aided the attack[ers]’. The Office of Legal Counsel have in turn reinterpreted this to include groups which are ‘associate forces’ and ‘successor entities’.
The original intention of the 2001 AUMF was meant to act as a declaration of hostilities/war against Al-Qaeda, it’s affiliates like Al-Qaeda in the Arabian Peninsula, and the Taliban government of Afghanistan which was harboring Al-Qaeda. However, the reinterpretations, and post-hoc addition of the ‘associated forces’ and ‘successor entities’ into the 2001 legislation has made it so that the Pentagon, CIA and National Security Council can claim that de-facto any vaguely Sunni Islamist armed group falls under the scope of the 2001 AUMF.
Concerningly, they do not feel the need to tell Congress or the American people of what or where it is currently fighting, as they already have the legal justification.
This was exemplified in 2017, where an attack in the Niger by a group associated with the Islamic State in the Sahel, Al-Mourabitoun, left 4 special forces operatives dead. Revealing for the first time publicly that the United States had active forces stationed across the Sahel region since the Obama Administration. Most surprised by this revelation were the members of the Senate Armed Services and Foreign Relations Committees, who furiously questioned the Pentagon on why US troops were stationed in the region, and why had no one told either committee of this deployment.
Chairman Dunford cited ISIS presence in the region for the deployment. Under the AUMF and current interpretation of the act, the Islamic State of the Sahel is a constituent force of the Islamic State of the Iraq and the Levant, and the Islamic State is a successor state of Al-Qaeda in Iraq, which itself is a constituent force of Al-Qaeda Central, and thus would be covered under the AUMF.
This level of contortion is not an exception but the rule in the modern context of the AUMF, where the Executive attempts to find any connecting factor between a group and Al-Qaeda to justify an attack to levels which can be patently absurd.
The best example is the Al-Qaeda ISIS link, which yes for a period from 2000-2014 was acting as a constituent force of Al-Qaeda, but now is currently engaged in a very public and active war against Al-Qaeda across the Islamic world. But still asserts AUMF authority to strike ISIS. This absurdity is even tacitly acknowledged by the government who in the recent case of Doe v Mattis, where it is thought that the government decided not to push for a ruling on the merits of Doe being a member of the Islamic State in fear that the judge would rule that the 2001 AUMF does not cover ISIS and thus Doe’s detention was unlawful (Doe being an American citizen capture in Syria by the SDF in suspicion for his ties to ISIS).
As such, the American people are owed a new debate about the AUMF and its expansive powers. I doubt that any American thought in 2001 that the AUMF would justify a global crusade against terror that the USA is currently engaged in. The American people deserve a right to decide where we are fighting wars in, and Congress should wrangle its Article 2 powers to engage in war and reign in the executive from fighting secret wars across the world.