2001 Authorization Still Legal Basis for War, Leaders Say
By Karen Parrish
American Forces Press Service
WASHINGTON, May 16, 2013 The 2001 Authorization for the Use of Military Force remains viable more than a decade after its passing, a panel of defense leaders told Congress today.
The authorization empowers the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Michael A. Sheehan, assistant secretary of defense for special operations and low-intensity conflict, and Robert S. Taylor, acting general counsel for the Defense Department, testified before the Senate Armed Services Committee on the law of armed conflict, the use of military force and the 2001 Authorization for the Use of Military Force.
Other witnesses were Army Brig. Gen. Richard Gross, legal counsel to the chairman of the Joint Chiefs of Staff, and Army Maj. Gen. Michael K. Nagata, who serves in the Joint Staff’s deputy directorate for special operations, or J-37.
Taylor outlined the legal framework for warfare, which he said rests on the principles of humanity and avoidance of suffering; distinction, which limits allowable targets to military objectives; military necessity, which calls for all legal means of force to be used in accomplishing a valid military objective; and proportionality, which requires that the anticipated collateral damage of an attack not exceed the anticipated military advantage.
Sheehan said the 2001 authorization, commonly known as the AUMF, governs the current armed conflict between the United States and al-Qaida, the Taliban and associated groups. He described the process by which the Pentagon develops targeting recommendations in that conflict for the president’s approval.
Sheehan noted the department’s recommendations result from a “careful, fact-intensive assessment” to determine, first, whether individuals or groups pose a threat to the United States and, second, whether they are “appropriately targetable.” Appropriately targetable groups are not just in sympathy with, but actually co-belligerents with al-Qaida or the Taliban, Sheehan said.
Sheehan told the committee the department determines which groups or individuals can be identified as associated with al-Qaida. He agreed to provide the committee a list of such groups, and keep them informed of any changes to it.
He added that for operations outside Afghanistan, the targeting review “continues up the chain of command, through the four-star combatant commander, and all the way to the secretary of defense.”
Before the secretary makes a decision, the chairman of the Joint Chiefs of Staff and the department’s general counsel review the recommendation, Sheehan said, and senior officials in other departments and agencies provide input on requested use of military force against al-Qaida, the Taliban, or an associated force outside of Afghanistan.
“Military orders implementing a final decision are then transmitted down through the military chain of command to the relevant forces that carry out such operations,” he added. “This process includes rigorous safeguards to protect innocent civilians.”
All four panelists noted they have not seen an instance where existing authorities, including the AUMF, prohibited the use of force.
Nagata explained that he monitors the implementation of the counterterrorism missions, orders and directions the defense secretary issues to combatant commanders.
“I've not yet encountered a situation where there was insufficient legal authority for the combatant commander to execute the mission or the direction he's been given,” the general noted.
Gross agreed. As staff judge advocate at U.S. Central Command and during his service as the chairman’s legal counsel, he said, “I haven't seen a situation where there wasn't some legal authority to be able to go after members of al-Qaida or associated forces.”
Sheehan noted that if a terrorist organization outside of al-Qaida, the Taliban and associate forces began to threaten the United States, “Then we might have to look at different authorities or extended authority or adjustment of authority to go after that organization.”
Sheehan and Taylor both also agreed that when hostilities with al-Qaida end, the AUMF will no longer be in force.
Sheehan said the end of the conflict will not be soon, however.
“I believe it's at least years in advance, based on my understanding of the organization, of resiliency of al-Qaida and its affiliate forces,” he said. “It's many years in advance.”