Senator Chris Murphy on the need for a new AUMF

The Aspen Security Forum is an annual gathering of many of the top leaders in the national security realm.  One of the great things about it is the opportunity to pose questions, and I asked Sen. Chris Murphy (D-Conn) – whose committee assignments include Foreign Relations and Appropriations – whether or not he thought we needed a new Authorization for the Use of Military Force (AUMF).

A little context: Congress passed the current AUMF in the aftermath of the Sept 11th 2001 attacks, and it’s been relied upon as legal authority for almost all of our military actions in the Middle East since then.  Here’s the wording of the relevant section:

“That the President is authorized 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 September 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.”

Obviously, the situation has evolved in the 18+ years since it became law, but Congress has not acted to repeal it, so it remains the law (and there is no “sunset” provision).

The title of Sen. Murphy’s presentation was “U.S. Strategy in an Unstable Middle East” and he was interviewed by Samantha (Sam) Vinograd, National Security Analyst for CNN.

Here’s an unofficial transcript of my question to Senator Murphy and his answer. (This is a lightly edited version of the transcript found here.  Keep in mind that the “authoritative record of Aspen Institute programming is the video” which is found here):

Dunlap: Do you think we need a new AUMF, and if so, what would you like to see in it?

Sen. Murphy: Absolutely. And Sam [Vinogard] we didn’t get to talk about this question of authorization but let me take a moment to express my disgust at how Congress has abdicated its responsibility to be a coequal branch on the setting of foreign policy with this with the Article II [Executive] branch

We have given up on authorizing military force largely because it’s a lot harder than it used to be. Right. We don’t have armies marching against each other we don’t have peace treaties that wrap up hostilities. It’s harder to define your enemies. It’s much harder to define what victory looks like. And we just stopped doing it. We didn’t do it on Libya. And we should have. We didn’t do it when we went to war with ISIS. And we should have.

And now we have an administration that is looking to pervert the 2001 AUMF – which was an authorization to go to war essentially against al-Qaeda – as a means to start war in Iran against a Shiite government that has very little if anything to do with with al-Qaeda.

And so I just think we have to get back into this business and put an authorization of military force on the floor of the United States Senate and debate it. See if we can come to a conclusion. We tried that back at the very end of Democratic control of the Senate. We actually got an ISIS authorization passed through the Foreign Relations Committee.

So it’s a way to show that it isn’t impossible but it is also incumbent upon the administration to show restraint as well. The Obama administration rightly showed restraint in deciding not to bomb Syria without coming to Congress.

And there was all sorts of smart people in Washington who said that was such a political and national security mistake that the president showed weakness in waiting to come to Congress he should have known that he couldn’t get authorization he should’ve just gone and done it himself. Well because you can’t get authorization is not an excuse to violate the Constitution.

The American people are smarter than you think they are. They are very wary of committing U.S. military resources in the Middle East. And so they deliberately make it really hard on Congress to authorize war especially in that part of the world. Congress was not going to authorize a military strike against Syria. That’s because the American people didn’t support it. And that in and of itself is a reason not to do it. That’s what the Founding Fathers said.

And so it is incumbent on Congress to get back in this game but it is also incumbent upon the executive. And I would argue the next Democratic president to make a commitment that they are not going to engage in any unauthorized military activity without coming to Congress first even if it looks like an emergency even if it looks like Congress is not going to give you that authority.

When Sen. Murphy says the “Obama administration rightly showed restraint in deciding not to bomb Syria without coming to Congress” he was referring to the 2013 decision not to use military force against Syria for using chemical weapons against its own people.  Obama made that decision even though he had warned that if Syria used chemical weapons it would cross a “red line,” presumably meaning that force would be used.

However, Obama was determined to get approval from Congress, but when it appeared it would not be forthcoming, he opted for a diplomatic agreement with the Russians to have the weapons destroyed.  The deal, however, fell apart, and the Syrians again used chemical weapons.  In 2017 and again in 2018, President Trump – without seeking Congressional approval – ordered strikes against Syria after additional chemical attacks.  The chemical attacks stopped.

After the 2018 strike, the administration explained its legal rationale:

“The President reasonably determined that this operation would further important national interests in promoting regional stability, preventing the worsening of the region’s humanitarian catastrophe, and deterring the use and proliferation of chemical weapons. Further, the anticipated nature, scope, and duration of the operations were sufficiently limited that they did not amount to war in the constitutional sense and therefore did not require prior congressional approval.” (Emphasis added.)

Though the strikes were controversial in some legal circles, I thought there was legal justification for both (but I was focused on the international law basis – see here).

Interestingly, in 2017 Time Magazine reported that:

Former President Obama cited his decision not to bomb Syria in 2013 following confirmation that President Bashar al-Assad had used chemical gas as the one that required the most courage during his presidency.

“I actually think that the issue that required the most political courage was the decision not to bomb Syria after the chemical weapons use had been publicized and rather to negotiate them removing chemical weapons from Syria.”

But Obama’s Secretary of State John Kerry told CBS News in 2018 that:”[H]e was unable to persuade then-President Barack Obama that Syrian President Bashar al-Assad “needed to be taught a lesson” for violating ceasefires and using chemical weapons on his own people.”

Kerry insisted that Obama’s restraint came at a cost to the perception of America’s determination:

“[W]e paid a price for that. There’s no question about that. We paid a price. And all the explanations and everything else doesn’t change the perception, and perceptions sometimes are very telling in diplomacy and politics.”

All of this said, I support a new AUMF for many of the reasons Murphy cites (I don’t, however, share his view that a president needs to come to Congress for approval “even if it looks like an emergency”).

After his presentation I was able to speak briefly with Sen. Murphy, who I found to be impressive even as I do not agree with him on every issue.  We agreed that a further rationale for a new AUMF is that a public debate in Congress could remind all Americans that we are at war, and give the troops being sent in harms’ way the clarity of mission they deserve for the sacrifice they are being asked to make.

Still, as we like to say on Lawfire®, gather the facts, assess the law, and decide for yourself!






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