Does the president have domestic legal authority to put boots on the ground in Congo, asked Graham? "Yes, sir, he does," responded Michael Sheehan, assistant secretary of defense for special operations and low intensity conflict.
In fact, asked Graham, "[W]e're talking about a world-wide struggle?... [And] the battlefield is wherever the enemy chooses to make it?" Taylor agreed: "Yes, sir, from Boston to the FATA [the Federally Administered Tribal Areas in Pakistan]."
Speaking not just as a law professor but as a citizen: It would be nice to know if President Obama thinks the AUMF authorizes him to use military force in Boston, wouldn't it? Not whether he would as a matter of policy refrain from using military force in Boston, but whether as a matter of law he believes that Congress has authorized him to use military force in Boston if "the enemy" turns up there.
When Senator Joseph Donnelly asked if the AUMF would permit the president to use military force inside Syria against the al-Nusra Front, however, Taylor seemed suddenly less sure: He agreed that al-Nusra is "an AQ affiliated group" but said, "I don't have a definite answer" on whether the AUMF would apply. His colleague on the panel, Assistant Secretary Sheehan, did have a definite answer: Under the AUMF, he said, "Yes sir, we'd have the authority to act against Al Nusra."
President Obama should tell us if he agrees that the 2001 AUMF gives him open-ended authorization to send U.S. troops into combat anywhere on Earth, as long as he asserts that their mission is to fight al Qaeda or "its associates." Or does he think there is some limit -- geographical, functional, or temporal -- on the scope of his authority under the AUMF? And: If there are some limits, how can Congress and the American public be sure his administration is abiding by those limits?
And, Mr. President? "Trust us, we have very careful procedures" is not the right answer here. Convince me that "checks and balances" refers to something other than the federal budget.
2) Mr. President, exactly how do you define "associates" of al Qaeda and the Taliban? Is being "affiliated" with al Qaeda enough to make an individual or organization a lawful target under the AUMF, or must that person or organization do something more to become a lawful target? If so, what's the "something more"?
The main basis for AUMF mission creep has been the executive branch's assertion that the authority to use force against those responsible for 9/11 includes the implied authority to use force against their "associates." But who, exactly, counts as an "associated force"?
At the May 16 hearing, administration witnesses offered little clarity. Taylor, citing former DOD General Counsel Jeh Johnson, defined "associated force" as "first... an organized, armed group that has entered the fight alongside al Qaeda. And second... a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners."
But this raises more questions than it answers. How organized is "organized," and outside of traditional, territorially-defined battlefields, what does it mean to "enter the fight" or be a "co-belligerent"? Outside of traditional battlefields, what constitutes "hostilities"? Does raising money for al Qaeda in Mali count as being a co-belligerent in hostilities, for instance? How about urging others to support al Qaeda?
Assistant Secretary Sheehan conceded that "mere sympathy" with al Qaeda is "not enough" to turn an individual or organization into an "associate," but other than that, there seemed to be no consensus on what makes a group targetable under the AUMF.
Perhaps hoping to deduce the administration's legal criteria from its conclusions, Sen. Carl Levin asked Sheehan if there's "any good reason why both Congress and the public should not be informed of which organizations and entities the administration has determined to be co-belligerents of al Qaeda?"
Sheehan responded with visible unease: "A lot of these groups, as you know, Senator, have very murky membership, and they all [inaudible] -- and they change their name. And they lie and obfuscate their activities. So I think it would be difficult for the Congress to get involved in trying to track the designation of which are the affiliated forces."
Let me translate. For there to be an "associated force" of al Qaeda, there must be an "organized armed group," but it would apparently be unfeasible for the administration to identify such "organized" armed groups because we can't actually figure out what they are or who is in them.
Nevertheless, assured Sheehan, "We know when we evaluate these forces what they're up to, and we make that determination based on their co-belligerent status with al Qaeda and make our targeting decisions based on that criteria, rather than on the shifting nature of different groups and -- and their affiliations."