Secretary of Defense James Mattis and Joint Chiefs of Staff Chairman Joseph Dunford found something constructive to tell senators on an appropriations subcommittee last week, even if it had nothing to do with the Pentagon budget. The two men challenged lawmakers to finally provide a legal basis for the U.S. war against terrorist groups.
It’s something President Barack Obama was never able to get from Congress. So instead, for his entire presidency, Obama based U.S. counterterrorism efforts abroad mostly on the authorization for the use of force that Congress passed shortly after the Sept. 11 attacks. The logical problem here is obvious: today’s biggest terrorist enemies — groups such as Islamic State, Al-Qaida in the Arabian Peninsula, and Al-Shabaab in Somalia — didn’t exist in 2001. Thus it’s absurd to say they count among the terrorists who “planned, authorized, committed or aided” the Sept. 11 atrocities. Nor are they covered by the follow-on 2002 authorization to invade Iraq.
This is more than legal semantics. Congress has for too long abdicated its role in American war-making, another example of it ceding ever-more ground to the executive branch on matters of highest national importance.
And now that President Donald Trump is reportedly looking at counterterrorism actions going well beyond the Obama approach — including bringing Islamic State members and other new terrorists to Guantanamo Bay, and loosening the rules on and broadening the air war in Yemen and Somalia — the legal precariousness poses a tangible threat. Any new detainees brought to Gitmo would have a strong claim to U.S. courts that their imprisonment is illegal, while international authorities could more easily make the case that drone strikes in Somalia or Yemen are war crimes.
Another important, if overlooked, aspect is the effect on the troops. As General Dunford put it, the men and women in harm’s way “would benefit from an authorization for the use of military force that would let them know that the American people, in the form of their Congress, were fully supportive of what they’re doing out there.”