Secretary of Defense James Mattis and Joint Chiefs of Staff Chairman Joseph Dunford found something constructive to tell senators on an appropriations subcommittee this 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 US war against terrorist groups.
It’s something that President Barack Obama was never able to get from Congress. So instead, for his entire presidency, Obama based US 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 the Islamic State group, Al-Qaeda in the Arabian Peninsula and Al-Shabaab in Somalia -- didn’t exist in 2001. Therefore, 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 group 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 US 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.
Of course, there are many issues to be hashed out on the language of a new measure. Would it be have geographic constraints, or allow the US the fight the jihadists wherever they go? Would it be indefinite or have a sunset date of two or three years? Would it replace the 2001 measure or just augment it? In any case, a new authorization should include requirements for the administration to report regularly to lawmakers and the public on where actions have taken place and what groups have been added to the target list.
But before Congress can even start grappling with these questions, it needs to get serious about its constitutional requirement to get involved. Let’s hope Gens. Mattis and Dunford gave lawmakers the boost of courage they needed.
