Ending undeclared wars: repeal of authorizing legislation

Michael Krepon has a useful piece at Arms Control Wonk commenting on President Obama’s speech on the use of armed drones for assassinations of alleged Taliban- and Al Qaeda-linked terrorists in Pakistan, Yemen, Somalia and elsewhere.

Leaving aside Obama’s attempt in the speech to limit the number of drone killings and tighten the criteria for such actions, Krepon makes an important connection in the argument about both the legality and strategic prudence of drone assassinations by linking the issue back to the foundation legal authority for these killings: the joint resolution of both houses of Congress resulting in the Authorization for Use of Military Force [AUMF, Public Law 107-40, 2002]

With its shades of the 1964 Gulf of Tonkin Resolution, the key passage is :

“The President is authorized 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, 2011, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”

While discussing the Obama speech, Krepon provides some useful additional material for the now widespread discussion of US drone strikes – including the Justice Department White Paper on drone strikes dated November 8, 2011 and leaked to the media in February, 2013, and Archbishop Desmond Tutu’s brilliant 12 February New York Times critique.

But the really important issue for those concerned about accountability and transparency of commencing contemporary wars comes when Krepon points that despite the announced winding down of the US troop presence in Afghanistan, there are no signs that Congress is reconsidering the basic authorizing legislation for the “war on terror”: the Authorization for Use of Military Force.

Since contemporary wars are rarely declared, such national legal authorities as AUMF or the Gulf of Tonkin Resolution are extremely important – at both the start and end of conflict. A related case in point is the use of UN Security Council resolutions, such as Security Council Resolution 1386 (2001), passed on 20 December 2001. This resolution, renewed annually by Security Council vote:

  1. Authorizes, as envisaged in … the Bonn Agreement, the establishment … of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas …;
  1. Calls upon Member States to contribute personnel, equipment and other resources to the International Security Assistance Force, and invites those Member States to inform the leadership of the Force and the Secretary-General;
  1. Authorizes the Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate;

The Australian government cites UNSC 1386, together with a request for assistance from the Government of the Islamic Republic of Afghanistan, as the legal foundation for 12 years of Australian involvement in the war in Afghanistan. This involvement will not end with the withdrawal of the ADF from the Oruzgan province bases at Tarin Kowt and elsewhere – Special Forces (SAS and other units) will continue to cooperate with US special forces and the Afghan National Army for an unspecified period.

The legal force – and legitimating potency – of UNSC 1386, like the Congressional Authorization for Use of Military Force, will continue until they are repealed – in the US Congress and the UN Security Council. In fact, “repeal” of UNSC 1386 actually need not be explicit. Simply failing to pass the annual renewal would be sufficient. But in the US case, as with the Gulf of Tonkin repeal resolution in June 1970, explicit de-authorising legislation is needed.

The procedures for ending – and for delegitimating – these “undeclared” wars is politically critical. As Krepon points out, while Obama may be opting for a little more prudence in the use of armed drones as global tools of assassination, there is no sign that their American framing through the “war on terror” is about to end. US drone killings in Pakistan, East Africa, and the Arabian peninsula will continue, and Australia is involved – through Pine Gap, and through the assistance provided by SAS forces operating in Africa.

Just as we need transparency and accountability for taking Australia to war, we need more thought about how to end such involvements – particularly in the case of “the war on terror” and their future cousins.

by Richard Tanter

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