CAPITOL HILL — Friction is rising between U.S. lawmakers and the Obama administration over the ground rules for America's global anti-terror efforts nearly 13 years after the attacks of September 11, 2001. The issue is central to matters ranging from U.S. drone strikes, to CIA activities, to America's future military engagement in Afghanistan, to detainees held at Guantanamo Bay, Cuba.
Weeks after the 9-11 attacks, Congress authorized an open-ended military campaign against al-Qaida and affiliated terrorist groups. That Authorization to Use Military Force, or AUMF, was the focus of a speech by President Obama last year.
"In the years to come, not every collection of thugs that labels themselves al-Qaida will pose a credible threat to the United States," Obama said. "Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don't need to fight. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF's mandate. And I will not sign laws designed to expand this mandate further."
A year later, the AUMF remains in place and the rules for drone strikes remain a matter of administration policy, not codified law. The president appears no closer to fulfilling his pledge to close the Guantanamo Bay facility, although Congress has restricted closing the military prison.
At a Senate Foreign Relations Committee hearing, Chairman Robert Menendez posed this question to administration legal advisors: "Is the 9-11 AUMF broken in some way? Is it obsolete? Is it inadequate to the threats we and our friends and allies face today and for the foreseeable future?"
The Pentagon's lead attorney, Stephen Preston, declined to pass judgment on the existing AUMF, and spoke in general terms of what is needed going forward.
"The challenge is to ensure that the authorities for U.S. military operations are both adequate and appropriately tailored to the threat," he said.
Such vagueness tested the patience of senators of both parties, including Republican Bob Corker.
"Are there [[terrorist]] groups we cannot go against [[combat]] today, yes or no?" Corker asked.
Preston replied that President Obama wants "a dialogue with Congress about the continued necessity and utility of the AUMF or a follow-on legal regime."
Corker admitted to being frustrated. "I have had no reach-out from the administration. So that is another line of hollow comments from this administration. You have reached out in no way to talk about refining this [[AUMF]]," he said.
The committee also sought input from past U.S. officials. Former State Department Legal Adviser Harold Koh argued against a permanent military authorization.
"We should not treat the AUMF as a perpetual, all-purpose security blanket that can be distorted and that will, itself, become a distorting force. We can, in time, repeal the AUMF and rely on other authorities to fill these gaps. And not to do so would be bad for our counter-terrorism policy and bad for our [[U.S.]] Constitution," Koh said.
Michael Mukasey, who served as Attorney General during the George W. Bush administration, said a legalistic argument over the use of military force misses a larger point.
"There are people who are committed to destroy Western civilization. And we are the principal focus of their energies. We could declare tomorrow that the war [[on terror]] is over. We could repeal the AUMF, and that would not change their agenda. They [[terrorists]] get a vote in this," Mukasey said.
The Obama administration insists it has been far from passive on the appropriate use of military force. It notes efforts made to prevent civilian casualties in drone strikes, and its notification of appropriate congressional committees every time a strike is ordered. U.S. officials say they will be in a better position to decide the future role of force against terrorism, once the fate of a pending security agreement with Afghanistan is known. Such assurances do not seem to satisfy U.S. lawmakers.