An MQ-9 Reaper unmanned aircraft prepares to land after a mission in support of Operation Enduring Freedom in Afghanistan. (SSgt Brian Ferguson/ / US Air Force)
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WASHINGTON — US senators are readying a measure that would for the first time revise the legal underpinning for America’s fight against violent Islamic groups.
For years, lawmakers in both parties and both chambers have advocated rescinding the September 2001 authorization of the use of military force (AUMF) or updating it, especially as al-Qaida has been weakened in Pakistan and Afghanistan but gained strength elsewhere.
Experts and some pro-reform lawmakers contend the 2001 measure is outdated, and should at least be updated to reflect a changed fight against al-Qaida and similar forces in places beyond Afghanistan and Pakistan.
Now, the possibility of US military action in Iraq and the threat posed by groups like the Islamic State of Iraq and the Levant (ISIL) have members like Sen. Tim Kaine, D-Va., saying a new force-authorization measure is needed to provide an adequate legal basis.
Kaine and Sen. John McCain, R-Ariz., told CongressWatch last week they are in talks about an AUMF-reform amendment. Both said they have discussed the matter with other senators, describing support in the upper chamber as broad.
“He and I, actually, are very focused on the need to tailor and refine it,” Kaine said.
Asked how he and McCain will propose changing the post-9/11 measure, Kaine said during a brief interview, “I think we know conceptually [but] we’re not wordsmithing it yet.
“But, you know, a lot of [senators] have interest in it,” Kaine said. “And some of these events recently demonstrate there’s a real need for it.”
Kaine and McCain said they intend to offer their emerging measure on the Senate floor when the chamber takes up its version of a Pentagon policy bill later this year.
Both senators are members of the chamber’s Armed Services and Foreign Relations committees.
“In the NDAA mark up in committee, we talked about it,” Kaine told CongressWatch. “But we decided it would be better for the floor.”
Kaine spent much of last week making a public case for AUMF reform, penning a Washington Post op-ed on the matter, delivering a lengthy floor speech and doing cable news appearances.
He has a powerful ally in McCain, who regularly finds himself at the center of efforts to find bipartisan middle ground on policy matters.
“I’ve talked to [Kaine] a lot about that,” McCain told CongressWatch. “I think we would like to do something on the defense authorization act.”
Kaine said, “there’s quite a bit of interest in both Armed Services and Foreign Relations [committees],” adding he detects support from senators in “both parties.”
In that June 25 floor speech, Kaine made the case for updating the force-authorization measure, passed just a few days after the Sept. 11, 2001, attacks on the United States.
“Congress passed an [AUMF] immediately after … the 9/11 attacks to allow action against those who perpetrated the attacks on that day,” Kaine said Wednesday on the Senate floor. “ISIL had no connection with the 9/11 attacks. ISIL did not form until 2003.
“ISIL is not al-Qaida, nor is it an associated force,” he said. “It would be a wholly unprecedented stretch to suggest that the 2001 AUMF would justify action against ISIL in Iraq.”
SASC already has approved its version of the National Defense Authorization Act (NDAA). But McCain and Kaine could offer an AUMF-reform amendment when the legislation hits the floor, probably late this year.
Senate Armed Services Committee Chairman Sen. Sen. Carl Levin, D-Mich., told reporters last year he doubted AUMF reform efforts would go anywhere because the White House opposes altering the measure.
Some legal scholars and national security analysts say the Obama administration might push for changes near the end of President Barack Obama’s second term, which ends in January 2017.
“Sixty words have defined the last 13 years. … But those 60 words, known as the Authorization for Use of Military Force ... have been in effect for far longer, in more places, and invoked against more groups than anyone could have suspected in 2001,” Mieke Eoyang of think tank Third Way wrote in a May article. “After bin Laden’s death and with the war in Afghanistan drawing to a close, now it is time to revisit the AUMF.
“The time has come to reform the [AUMF]. This country has come too far, and we have sacrificed and learned too much in the past 13 years, to be relying on an old and increasingly outdated authority to fight al-Qaida,” Eoyang wrote. “Starting over with a blank slate is better than going forward with a blank check.”
Other analysts warn, however, as has Ahmad Majidyar of the American Enterprise Institute, that “repealing or significantly restricting” the post-9/11 measure “at a time when al-Qaida remains a viable threat would be premature and dangerous.”
“It undercuts the effectiveness of US counterterrorism efforts and allows al-Qaida and its associated forces to grow stronger in South Asia and the Middle East,” Majidyar has written on the conservative think tank’s website. “Until al-Qaida and its associated forces are degraded to an extent that they pose no significant threat to US national security, the AUMF must not be repealed or replaced.” ■