Following the ambush in Niger, Congress needs to consider a new war authorization

The ambush in Niger that killed four American troops has reinvigorated the debate about the legal basis for our country’s use of military force against various terrorist organizations. On Monday, Secretary of Defense James Mattis and Secretary of State Rex Tillerson will testify before the Senate Foreign Relations Committee on this crucial issue. 

As Congress considers this question, our military is using military force around the world based on an outdated legal authority tied to the 9/11 attacks. Congress has not adopted a new authorization to align more closely with the terrorist threats we face today. This inaction threatens to undercut the legitimacy of our military efforts and to confer on the executive branch expansive authority to wage an open-ended “war on terror.”

{mosads}In the wake of the 9/11 terrorist attacks, Congress passed the 2001 Authorization for the Use of Military Force (AUMF) to authorize the military to use force against the nations, groups and persons responsible for the 9/11 attacks, including al Qaeda and the Taliban in Afghanistan. Since then, American presidents have invoked the 2001 AUMF at least 37 times for operations in at least 14 nations against half a dozen terrorist groups. Nearly two thirds of current members of Congress weren’t in office in September 2001, and those who were in office at the time likely did not anticipate the AUMF being interpreted so expansively.

In one sense, this expansion of the use of force is necessary and appropriate. The threat of terrorism has evolved dramatically since the 9/11 attacks. The rise of ISIS in Syria and Iraq undoubtedly requires a military response. But what’s missing is a meaningful and constructive congressional debate about how, where, for how long, and to what end our military should be used to fight terrorism.  

This discussion should begin with an assessment of which groups are appropriate to include within a new AUMF. The key here is to understand that an AUMF is essentially the modern equivalent of a war declaration. It confers extraordinary war time powers that ought to be reserved for use only in armed conflicts against grave threats. Therefore, a new AUMF is appropriate for some terrorist groups, like al-Qaeda and ISIS—against which the United States is engaged in sustained, long-term hostilities—but not for other groups against which our counterterrorism strategy does not require a military response. 

We face a diverse array of terrorism threats overseas and at home, requiring a variety of calibrated responses from our counterterrorism tool box. In some cases, this includes turning to our armed forces, but in other cases, we should deploy our intelligence, diplomatic, and law enforcement capabilities to meet the threat. 

America’s men and women in uniform deserve a serious debate about the role and objectives of military engagement against terrorist groups overseas, and clear legal support for the scope of these activities. And Congress has a critical institutional role to play in defining the parameters of war time authorities and conducting effective oversight. 

There’s an opportunity now to update and tailor our war authorizations to address the current threat and reflect the will of the American people. Congress can and should do so without providing a blank check to the executive branch for using war authorities beyond their appropriate scope. With clear drafting and thoughtful limitations—such as a sunset provision and robust reporting requirements—Congress can provide sufficient operational flexibility while preventing any new war authorization from being used in ways that undermine congressional intent, American values, human rights, or our long-term security interests. It’s time for Congress to take on this responsibility. 

Olsen is former director of the National Counterterrorism Center.