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Biden Officials Open to Tightening Law Authorizing War on Terrorist Groups

The Biden White House has signaled no discontent with the Pentagon’s use of that “self-defense” exception to justify a practice of essentially providing close air support for partner forces that go out on missions and then get into trouble, even if no Americans are present and at risk.

The domestic legal basis for airstrikes in both Somalia and Afghanistan is the 2001 war law, known as the Authorization for Use of Military Force, or A.U.M.F. While the Taliban, as Al Qaeda’s hosts, were always understood to be covered by it, the Obama administration in 2016 added Al Shabab to the war by deeming it an associated force of Al Qaeda.

In opening Tuesday’s hearing, the Foreign Relations Committee chairman, Senator Bob Menendez, Democrat of New Jersey, noted that he had voted for the 2001 law after the Sept. 11 attacks and said, “We never could have imagined it being used as a justification for airstrikes in Somalia or against groups that did not even exist at the time.”

The 2001 war law is broadly worded and contains no geographical limits. But efforts in Congress to update it have faltered for years amid sharp disagreements over how to replace it. Some lawmakers have been unwilling to vote for anything that would reduce the government’s authority to battle Islamist groups, while others have been unwilling to vote for anything that could be interpreted as entrenching the “forever war” or that could serve as a new blank check.

Against that backdrop, Senator Mitt Romney, Republican of Utah, voiced skepticism that any new counterterrorism war law would pass Congress. And multiple Republican senators expressed skepticism about repealing even the 2002 Iraq war law, suggesting that it might signal weakness in the Middle East, including to Iran.

While the 1991 war law is regarded as long obsolete, the executive branch has in recent years cited the 2002 war law as purported standing authorization from Congress to undertake very different combat operations in the Middle East than fighting Hussein: The Obama administration cited it in 2014 when it started bombing the Islamic State, and the Trump administration cited it in 2020 when it killed Iran’s most important general, Maj. Gen. Qassim Suleimani.

Both claims were disputed. But Caroline Krass, the Pentagon’s general counsel, noted that in both instances the executive branch portrayed the 2002 law as merely providing additional — rather than necessary — domestic legal authorization for those military operations.

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