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Overkill: Reforming the Legal Basis for the U.S. War on Terror

U.S. Air Force ground crew secure weapons and other components of an MQ-9 Reaper drone after it returned from a mission, at Kandahar Airfield, Afghanistan, 9 March 2016. REUTERS/Josh Smith
U.S. Air Force ground crew secure weapons and other components of an MQ-9 Reaper drone after it returned from a mission, at Kandahar Airfield, Afghanistan, 9 March 2016. REUTERS/Josh Smith

What’s new? The U.S. government is conducting a formal review of its counter-terrorism direct action operations – ie, those that involve kill or capture. But it is not clear that the review will shed light on key questions about the effectiveness of militarised counter-terrorism efforts or recommend major changes.

Why does it matter? The so-called global war on terror deserves greater oversight. Since the 11 September 2001 attacks, the U.S. has waged war upon numerous jihadist groups in a dozen or more countries. Decisions to change the conflict’s scope are often taken unilaterally and in secret by the executive branch.

What should be done? The U.S. needs better rules for the war on terror. Congress and the Biden administration should cooperate on a new, more specific authorisation that requires greater deliberation, transparency and accountability for decisions about the war’s scope. This process could help winnow unnecessary components of the war.

Executive Summary

Within days after al-Qaeda attacked the United States on 11 September 2001, the U.S. Congress enacted the 2001 Authorisation for Use of Military Force (AUMF), enabling President George W. Bush to use military force against the operation’s planners and those who aided and harboured them. But, over time, that law became more than just the basis for waging war upon al-Qaeda and the Taliban. As the U.S. expanded operations against jihadists from the Philippines to Niger, successive presidents chose not to seek additional authority from Congress, relying instead on increasingly strained interpretations of the AUMF. These interpretations allowed the executive branch to determine the war’s scope outside the full set of checks and balances that Congress is supposed to supply. This practice should stop. The Biden administration should work with Congress to update the AUMF by replacing it with a statute that promotes transparency and accountability, and that narrows the war down to those efforts necessary to meet a genuine threat.

The U.S. war on terror took shape during Bush’s first term. While the Bush administration is remembered for egregious abuses committed at that time, including the rendition and torture of suspected enemy combatants, its legacy also includes certain enduring structural decisions. One was to seek from Congress a broad use of force authorisation that would allow the executive branch to place military action at the centre of its counter-terrorism strategy. The resulting statute – the 2001 AUMF – contains no termination date or geographic boundaries, and grants the president authority to determine which countries, groups or individuals will be subject to the use of force. The second such decision was to detain certain individuals captured in the conflict at Guantánamo Bay, Cuba. Thus, the administration set in motion litigation that became a proving ground for increasingly expansive theories about which groups and individuals the AUMF covered. The government sometimes pressed these theories into service to justify lethal operations.

When he took office in 2009, President Barack Obama sought to distinguish himself from President Bush, but he was only partly successful. He banned abusive interrogation techniques and decreed that he would close Guantánamo within a year – an ambition that went unfulfilled. Yet Obama did not reverse the war’s course. Indeed, on his watch its footprint expanded. Borrowing theories honed while defending Guantánamo habeas corpus cases (which it continued to do even as it sought the facility’s closure), the administration claimed that groups like al-Qaeda in the Arabian Peninsula (Yemen) and Al-Shabaab (Somalia) were “associated forces” of al-Qaeda and therefore covered by the AUMF. Obama’s lawyers also argued that the AUMF authorised war with the Islamic State in Iraq and Syria (ISIS), even though ISIS was known to have split with al-Qaeda. But even as they drew more power from the AUMF to prosecute the war, senior officials wanted to keep a tight grip on operations. They created a framework of safeguards aimed at protecting civilians and ensuring senior-level coordination around strikes.

President Donald Trump, who followed Obama in 2017, promised another about-face, but he, too, failed to make especially dramatic changes to the structure he inherited. During his campaign, Trump claimed that he would both adopt a gloves-off approach to the war on terror and curtail U.S. military entanglements abroad at the same time. To the relief of many, he did not make good on his threats to reintroduce the interrogation techniques Obama had banned. Nor did he entirely jettison the idea of an overarching policy framework to help set uniform standards and safeguards for the use of force in counter-terrorism activities. He did, however, rescind Obama’s framework and put his own in its place. In reality, the tempo of U.S. counter-terrorism activities worldwide, especially in Africa, including engagement in “advise, assist and accompany” operations with partner forces, appeared to pick up under his watch.

As for the Biden administration, which took office in January 2021, the decision to withdraw troops from Afghanistan marks a major shift in the war on terror, but it is uncertain whether further significant changes will follow. An ongoing counter-terrorism policy review appears to be looking to identify middle ground between the Obama-era safeguards for military action (which operators found rigid and cumbersome) and Trump’s more operationally permissive approach. Certainly, the recent revelation that a Kabul drone strike intended for ISIS wound up killing an aid worker and other civilians militates in favour of reinstating the strongest possible safeguards. But whatever the review accomplishes on that front, some participants have suggested that it may avoid looking at more fundamental questions, such as whether Washington’s military response to jihadist groups is properly calibrated to the threats the U.S. is facing, and whether the benefits of these military actions outweigh the costs.

On the subject of legal reform, there are similarly reasons to believe that the administration lacks interest in contemplating major change. It has signalled its willingness to discuss with Congress a refresh of the 2001 AUMF, but it shows no sign of prioritising progress in this direction. Instead, it has said it is waiting for Congress to make the first move and has sent signals that its preference may be simply to recodify its authority rather than make the kinds of serious reforms that would encourage broader debate about the war’s appropriate contours. Under the circumstances, it seems entirely possible that the moment will pass without any legislative reform at all.

That would be a mistake. It is beyond the scope of this report to assess whether and where military force has been or continues to be a necessary and effective tool for countering jihadist threats to the United States. Still, these issues are clearly of enormous consequence to the U.S., its partners and the countries where they are operating and, overall, Crisis Group’s work on the ground in many of the areas affected suggests that a rethink is very much warranted. Yet, at the moment, there is little pressure on the Biden administration to offer satisfying answers, in part because the executive branch has become habituated to making critical decisions about the war unilaterally and behind closed doors.

There is a better way. The Biden administration should expand its policy review to examine where and against whom force is a necessary and effective instrument. It should include a review of “partnered” operations in support of proxy forces. The administration should also engage Congress. Rather than wait for the legislature to make the first move before pursuing the thorny but vital challenge of updating the 2001 AUMF, it should reach out to reform-minded members and begin the process itself. In formulating a replacement, the administration and Congressional counterparts should correct the features that have allowed the 2001 AUMF to survive for two decades, becoming a seemingly bottomless well of executive authority. The new authorisation should be specific about where and against whom force is permitted, make clear that “associated forces” can only be added by a further act of Congress, and require reauthorisation after two or three years to prevent the war from proceeding on autopilot and ensure that new generations of political leaders can be held accountable for its continuation.

Congress is not always a brake on war-making. It did, after all, enact the 2001 AUMF, not to mention authorising the Vietnam and Iraq wars. Still, if U.S. political leaders are to learn the lessons of past conflicts, then the law needs to create a framework for them to do so. A major overhaul of the 2001 AUMF is the best way to proceed in the struggle against transnational jihadism. After twenty years, there is no time to waste.

View the full report.

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