By Charles V. Peña
The Authorization to Use Military Force (AUMF) passed by Congress on September 14, 2001, authorizes the president “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 other words, al Qaeda and the Taliban regime in Afghanistan. On October 11, 2002, Congress passed a second AUMF giving the president authority to “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.”
Currently, however, the U.S. has military personnel deployed and equipped for combat in at least 19 countries: Afghanistan, Iraq, Syria, Yemen, Somalia, Libya, Kenya, Niger, Cameroon, Uganda, South Sudan, Democratic Republic of Congo, Central African Republic, Djibouti, Jordan, Turkey, Egypt, Cuba, and Kosovo.
Both the Obama and Trump administrations have argued that the 2001 and 2002 AUMFs are sufficient to expand the war on terrorism to targets outside Afghanistan and Iraq. In October, Secretary of State Rex Tillerson and Secretary of Defense James Mattis made the case that a new AUMF was not necessary. Testifying before Senate Foreign Relations Committee, Mattis said, “A new [war authorization] is not legally required to address the continuing threat posed by al Qaeda, the Taliban, and ISIS.”
However, some members of Congress are pushing back. There are currently six AUMF proposals being considered on the Hill. They are different in their details, but all attempt to exert Congress’ explicit authority in Article I, Section 8 of the Constitution to “declare war”—or in the context of modern times, use military force.
Further evidence that Congress is growing frustrated and weary of so many different U.S. military operations abroad is a nonbinding resolution passed 366-30 by the U.S. House of Representatives that declares that Congress has not authorized the “use of military force against parties participating in the Yemeni civil war that are not otherwise subject to the  Authorization of Use of Military Force … or the  Authorization of Use of Military Force in Iraq.”
Neither the 2001 nor the 2002 AUMF was intended to be a blank check, but that is how they have been used by this and the prior administration. If Congress doesn’t assert its authority, the executive branch will be empowered to engage in unending war—clearly not what our Founding Fathers intended in the Constitution.
The importance of Congress debating and deciding on a new AUMF goes beyond current military operations: a potential looming conflict with North Korea. It seems plainly obvious that a new AUMF would be needed for any military action against North Korea, but consider that Secretary of State Tillerson told the Senate Foreign Relations Committee that a requirement for congressional authorization would "depend all on circumstances" but would ultimately be a "fact-based decision." At the same hearing, Secretary of Defense Mattis said that the president has a "responsibly protect the country, and if there’s not time, I can imagining him not consulting or consulting as he's doing something"—such as President Trump’s decision to launch air strikes against Syria when Congress was “notified immediately,” according to Mattis.
It is also important to distinguish between “preemptive” and “preventive” strikes when it comes to military operations.
A preemptive strike is in anticipation of an imminent threat. In other words, striking first before an aggressor who is poised to attack can do so—which would be justifiable use of force and might have to be done prior to any Congressional authorization. But the administration has been trying to make the case for a preventive strike against North Korea. That is, the use of military force to prevent an adversary from obtaining a capability—in the case of North Korea, long-range ballistic missiles armed with nuclear warheads—so a threat doesn’t materialize sometime in the future. Any such action—however strategically unwise—would absolutely require Congressional authorization.
An AUMF takes on even greater importance given the possible use of nuclear weapons against North Korea since that may be the only way to have high confidence of destroying their nuclear weapons and programs, which we assume is in deeply buried and hardened locations. In a fiery speech at the United Nations, President Trump declared that “if [the United States] is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea.” The question is what the president means by “forced to defend itself.” If he means to defend against an imminent or actual attack against the U.S. homeland, the use of military force would be justified. But if he means to defend against a potential future threat that may or may not emerge, i.e., a preventive war, a nuclear first strike is beyond the pale.
Going nuclear may not be the primary option—hopefully, it isn’t—but the three most influential foreign policy voices in the White House are all men of military experience: Secretary of Defense Mattis and Chief of Staff John Kelly are both former U.S. Marine Corps generals, and National Security Advisor H.R. McMaster is still an active duty U.S. Army general. So their policy options will most likely favor military options, possibly nuclear.
Waging preventive war in Korea has profound human and strategic implications: potential escalation into nuclear conflict; hundreds of thousands of civilian deaths, including South Koreas, Japanese, and Americans living in South Korea; straining our alliances; potentially going to war with China; a refugee crisis; reunifying the Korean Peninsula after being ravaged by war, which would be a immense nation building task; and more. Such monumental decisions should not be left to any single person—that is why our Constitution vests the authority to make such judgements in the legislative branch. Congress must do its job, especially when it comes to its most solemn duty: declaring war.
Charles V. Peña is a senior fellow with Defense Priorities. He has more than 25 years of experience as a policy and program analyst and senior manager, supporting both the Department of Defense and Department of Homeland Security. Peña is the former Director of Defense Policy Studies at the Cato Institute and author of Winning the Un-War: A New Strategy for the War on Terrorism.
This piece was originally published by The Hill on December 1, 2017. Read more HERE.