Rep. Sara Jacobs Grills DoD and State Department Officials on AUMF
At a House Foreign Affairs Committee hearing today entitled “Reclaiming Congress’s Article I Powers: Counterterrorism AUMF Reform,” Rep. Sara Jacobs (CA-51) grilled officials from the Department of State and the Department of Defense about the Executive Branch’s lack of transparency and broad interpretation and use of the AUMF.
Watch Rep. Sara Jacobs’ Full Line of Questioning Here
Rep. Sara Jacobs said, “Thank you, Mr. Chairman, and thank you to all of our witnesses for being here. I represent San Diego, the biggest military community in the country. And my community has borne the cost of these decisions, or lack thereof, that Congress has not really been making since I was in middle school, which was when we voted on this AUMF.
“So, first, I just want to follow up on questions from Ranking Member Meeks and my colleague, Representative Phillips, on the 1550 reporting. Assistant Secretary Maier, will you commit to providing future Section 5050 reporting by the statutory deadline?”
Christopher P. Maier, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, United States Department of Defense, said, “I will, and just hit that point because it's come up a number of times, I'm responsible for the late submission of that report. So we have taken steps internally to ensure that we can meet that commitment, Congresswoman Jacobs.”
Rep. Sara Jacobs said, “Thank you. I appreciate that, especially since, as you all are asking for no sunset in exchange for promising more transparency, it feels hard to believe that when the transparency we already mandate isn't actually coming in. And on that regard, last year at the hearing on the AUMF, my colleague Mr. Castro asked why the Department of Defense had classified the list of countries in which the U.S. military had used force, and you responded that you would see if aspects of the classified report could be made public. We've seen no real disclosure since then. So can you commit to actually going back and taking that look and declassifying the list of groups, including affiliates that you consider to be covered by the 2001 AUMF?”
Christopher P. Maier, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, United States Department of Defense, said, “Yes, ma'am. And actually, a number of those groups are already unclassified that we can speak openly to here. In some cases, we are careful about identifying countries for purposes of diplomatic and a host of other things. But I think the vast majority of the groups are known publicly, ma'am.”
Rep. Sara Jacobs said, “Great. Well, I will look forward to not having to ask you the same question in a year. Moving on to this question of associated or affiliated forces, I think this is a key question for us in Congress and a key reason why it feels like the 2001 AUMF has gone so far beyond the original scope. It was originally supposed to be about those people who perpetrated 9/11, which is why we went after Al-Qaeda and the Taliban at the time. But from public reporting, from what you said today, we know that this AUMF has been used to justify force not only in Afghanistan, but in Iraq, Syria, Libya, Somalia, Mali, and Niger.
“So I want to talk about some hypothetical cases. I know you've said the standard is enter the fight alongside the named group, co-belligerent, and the intent. So Ms. Krass, if we could go through a couple hypothetical associated forces, and you can let me know with a yes or no answer if you would consider them covered.
“So first of all, if a group did not exist in 2001, could it still constitute an associated force or otherwise be covered by the 2001 AUMF?”
Caroline Krass, General Counsel, United States Department of Defense, said, “So thank you for that question, Congresswoman Jacobs, and I apologize that I prefer not to engage in hypotheticals. I think we can use as an example the designation of ISIS, which is a group that stems from Al-Qaeda in Iraq from 2003, so that's after the 2001 AUMF. But there were ties between its leader and Osama bin Laden before 9/11. That group eventually split from Al-Qaeda.”
Rep. Sara Jacobs said, “We're familiar with the history of ISIS. I would note there are a number of groups that didn't exist in 2001 that are currently covered, Al-Shabaab for instance, and didn’t have ties to Osama bin Laden prior to 2001. And what if the group itself, this affiliated or associated group, if you want to use real examples, you're welcome to. But if they don't have the ambition, intent, or capability to attack the U.S. homeland, as your own reporting that we just got this week says most of the affiliated groups don't, would that be considered covered by the 2001 AUMF?”
Caroline Krass, General Counsel, United States Department of Defense, said, “And so a group under the AUMF has to be a one which, as Assistant Secretary Maier has explained, an organized armed group which has entered the fight alongside Al-Qaeda or the Taliban and is a co-belligerent.”
Rep. Sara Jacobs said, “Yeah, I got that. But we know that, in fact, many of the groups that you all are counting do not actually have the intent to strike the United States, as per your own reporting.
“Next, if their aims are primarily local, meaning their grievances are specific to their community, have nothing to do with the United States, and their aim is to primarily attack in the region, would that be covered? The answer is yes. I'll answer for you. I know you don't like hypotheticals. We've seen that in the case of the elements in the Sahel, in Somalia.
“Lastly, if the group is an affiliate of an affiliate, so ISIS is categorized because they were an affiliate, but now we're saying ISIS affiliates are also covered. Would that be covered?”
Caroline Krass, General Counsel, United States Department of Defense, said, “So, again, to echo what Assistant Secretary Maier explained, we see ISIS as we don't look at ISIS as having associated forces itself. We see it as itself being a single organized group.”
Rep. Sara Jacobs said, “And I see that for some of the groups you’re counting as affiliates. But I think, for instance, ISIS Mozambique, it's very hard to say that they're part of core ISIS. So I will look forward to continuing this conversation. But I think it's clear that we have let these overly broad definitions make it so that we don't have any meaningful oversight over what you all are doing. And I think that just doing Al-Qaeda and ISIS and not the affiliated forces specifically named is really problematic. Thank you.”
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