New York City Bar Association Event

The Global War on Terrorism: Do We Need a New AUMF?

Congressional Authorizations on Use of Force

As delivered by William S. Castle

December 11, 2017

Thank you for that introduction and for your kind invitation to speak tonight.

First, let me extend my best wishes for the speedy recovery of those injured in todays bombing.

This August I was deeply humbled that President Trump and Secretary Mattis selected me to work
alongside some of our nations most dedicated and knowledgeable attorneys as the Principal
Deputy General Counsel for the Department of Defense. If that title is not long enough for you, I
am currently performing the duties of the General Counsel which is probably why I was invited
to speak tonight.

I have the enormous honor to work among supremely dedicated civilian and military professionals.
My job reminds me everyday that brave men and women are presently serving throughout the
world in defense of our nation, our freedoms and our values.

Before I discuss the Authorizations for Use of Military Force, I first wish to say a few words about
the Department of Defense and Secretary Mattiss commitment to the law. Recently, the Secretary
sent a memo to every member of the Department explaining his ethical expectations: specifically,
we do what is right at all times, regardless of the circumstances or whether anyone is watching.
At the same time, the Secretary has reasserted that we are a Department of war.

He rightly reminded us that it is the responsibility of each member of the Department to remain
true to their oath of office. Specifically, to protect and defend the Constitution, our people, and
our values. True to that oath, I can assure you the Secretary and the Department demand a zealous
legal review to ensure compliance with the law -- of every action, directive, initiative, and
operation that falls under its purview.

In fact, I believe most Americans would be astounded by the time, energy, and dedication devoted
to ensuring the Department is always within the boundaries of the law.

Which brings me to tonights event; a discussion of the legal scope of the 2001 and 2002
Authorizations for Use of Military Force, or AUMFs, as well as the policy decisions underlining
whether and how to augment or replace those authorities.

My goal tonight is for my remarks to inform your thinking and the discourse on the legal authority
for the ongoing use of military force overseas. As we discuss the particulars of the law, however,
I would ask all of us to remember that Congress promulgated authorizations for the use of military
force to respond to grave threats to the nation. And dedicated Soldiers, Sailors, Airmen, Marines

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and Coast Guardsmen have acted pursuant to these authorizations continuously since September
11, 2001.

They protect all of us.

Tonight I will address the continued importance of the 2001 and 2002 AUMFs. Im not attempting
to address all legal aspects or justifications for the use of military force, just the two existing
AUMFs and the prospect of an additional AUMF. So I will not be addressing, for example, the
Presidents Constitutional authority to take military action without a prior authorization of
Congress, including a military commanders inherent right to exercise self-defense of U.S. forces.
Additionally, I will not be discussing detention of individuals in armed conflict beyond noting that,
as a plurality of the U.S. Supreme Court recognized in the 2004 Hamdi decision, the capture and
detention of enemy belligerents in order to prevent their return to the battlefield have long been
recognized as an important incident of war.

I will speak as specifically as I can, but there remains information about U.S. national security
operations I am unable to discuss publicly.

I will begin by explaining the 2001 and the 2002 AUMFs, including what they authorize and how
they have been interpreted by the different branches of government. I will also explain how there
are limits to both statutes, that they were neither intended to operate, nor do they operate, as blank
checks. I will conclude by highlighting the danger that imposing artificial and unnecessary
limitations in any new AUMF may unduly restrict or delay our ability to respond effectively and
rapidly to terrorist threats to the United States.

I want to emphasize that force is applied consistent with international law, including the laws of
war. Even when we are dealing with enemy forces that do not wear uniforms or carry their arms
openly, we go well beyond the requirements of the law of war.

As Secretary Mattis recently testified before the Senate Foreign Relations Committee, the 2001
and 2002 AUMFs provide sufficient authority to prosecute operations against al-Qaida, the
Taliban, and, we believe, ISIS, the Islamic State of Iraq and Syria. To understand why they
provide sufficient authority, lets start with the 2001 AUMF.

2001 AUMF

After the September 11th attacks, Congress, through a joint resolution, passed the 2001 AUMF,
authorizing 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 order to prevent any future acts of international terrorism by such nations,
organizations or persons.

Although initially Afghanistan was the focus of the 2001 AUMF, the Presidents authority to use
force pursuant to that statute is not limited to that country. The 2001 AUMF authorizes all
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necessary force against covered nations, organizations, or persons without geographic or temporal
restriction. As the Department of Justice noted in a 2009 court filing, imposing a geographic limit
on the authority conferred by the 2001 AUMF would unduly hinder both the Presidents ability
to protect our country from future acts of terrorism and his ability to gather vital intelligence
regarding the capability, operations, and intentions of this elusive and cunning adversary.

Although the 2001 AUMF does not include geographic or temporal limitations, it also does not
does not authorize the President to use force everywhere against any and every group that commits
terrorist acts. The 2001 AUMF specifically authorizes use of force against al-Qaida, the
organization that planned, authorized, committed and aided the attacks, as well as the Taliban,
which harbored al-Qaida.

Associated Forces

Some of you may be wondering where and how associated forces come into our discussion of
the 2001 AUMF and what does ISIS have to do with the groups responsible for those attacks.

You did not hear me say the words associated forces when reading the operative portion of the
2001 AUMF because those words are not in the text of the statute. But there is governmental
consensus that the 2001 AUMF authorizes the use of force against al-Qaida, the Taliban, and
associated forces that are engaged in hostilities against the United States or its coalition partners
within and outside Afghanistan.

I want to address under what circumstances an entity is considered an associated force of either or
both of those groups.

To be considered an associated force of al-Qaida or the Taliban for the purposes of the 2001
AUMF, an entity must satisfy two conditions.

First, the entity must be an organized, armed group that has entered the fight alongside al-Qaida
or the Taliban.

Second, the group must be a co-belligerent with al-Qaida or the Taliban in hostilities against the
United States or its coalition partners.

The determination that a group is covered by the 2001 AUMF is made at the most senior levels of
the U.S. Government and involves careful and thorough evaluation of available intelligence
concerning the group. We also keep Congress informed of these determinations through a series
of formal and informal reports and briefings.

ISIS

What then of ISIS? This Administration shares the view of the previous Administration that the
2001 AUMF authorizes the use of force against ISIS. What we today call ISIS began as a terrorist
group founded by al-Zarqawi that was conducting attacks in Iraq in 2003. In 2004, Zarqawi
publicly pledged his groups allegiance to Usama bin Laden, and bin Laden publicly endorsed

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Zarqawi as al-Qaidas leader in Iraq. Zarqawis group, known as al-Qaida in Iraq or AQI,
continued conducting terrorist attacks against U.S. and coalition forces. In response, U.S. forces
engaged in combat operations against AQI until the United States withdrew from Iraq. AQI
metastasized into ISIS and engaged in a series of recruiting disputes and other arguments with al-
Qaida leadership.

The fact that ISIS, formerly known as al-Qaida in Iraq, appears to have split from core al-Qaida
does not change the fact that both are, and have been, properly covered by the 2001 AUMF for
more than a decade. ISIS did not recently materialize. ISIS is the direct and immediate
manifestation of AQI. ISIS has claimed that it and not al-Qaidas current leadership is the
true executor of bin Ladens legacy. And ISIS has engaged in terrorist attacks against the United
States throughout its existence.

As then-DoD General Counsel Stephen Preston said to the American Society of International Law
in 2015, disagreements between ISIS and al-Qaida do not divest the President of the previously
available authority to continue protecting the United States from ISIS. As Mr. Preston noted, a
contrary reading of the 2001 AUMF would allow the enemy rather than the President and
Congress to control the scope of the AUMF by splintering into rival factions while continuing
to prosecute the same conflict against the United States.

The conclusion that the 2001 AUMF covers ISIS is not only the view of the Executive Branch.
Congress has expressed support for this view as well.

Congress has repeatedly and specifically funded first President Obama and now President Trumps
military actions against ISIS through an unbroken stream of appropriations over multiple years.
Throughout the U.S. military campaign against ISIS, Congress has not only maintained, but
increased, its oversight role through a host of reporting requirements, along with reporting
consistent with the War Powers Resolution and regular oversight briefings.

And as the Chairman of the Senate Foreign Relations Committee recently stated:

The President, just like President Obama, believes he has the legal authority he
needs under the 2001 AUMF to fight ISIS, al-Qaida and other terrorist groups.
And I agree. I agree with the Obama administration and I agree with this
administration that they currently have that authority.

Let me now turn to the 2002 AUMF.

2002 AUMF

The 2002 AUMF authorizes the President to use the Armed Forces of the United States as he
determines to be necessary and appropriate in order to defend the national security of the United
States against the continuing threat posed by Iraq and enforce all relevant United Nations Security
Council resolutions regarding Iraq.

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Although the primary focus of the 2002 AUMF was Saddam Husseins regime, under its express
goals, the statute has always been understood to authorize the use of force for the related dual
purposes of helping to establish a stable, democratic Iraq and of responding, including through the
use of force, to terrorist threats emanating from Iraq.

The previous Administration and this Administration have relied on the 2002 AUMF to use force
against ISIS in Iraq and Syria. And both Administrations informed Congress of their reliance on
the 2002 AUMF.

The 2002 AUMF plays an important role in more fully enabling the United States to assist the
Government of Iraq in establishing safety and security. But the 2002 AUMF requires a nexus to
Iraq and is in that respect a narrower, and more tailored, grant of authority to use force than the
2001 AUMF.

New AUMF

I hope my remarks have fleshed out the basis for Secretary Mattiss testimony that the United
States already has sufficient legal authority under the 2001 and 2002 AUMFs to prosecute
operations against al-Qaida, the Taliban, and, we believe, ISIS.

We do not need any new or additional AUMF to continue that fight. But, even as recently as
October of this year, there have been calls for a new AUMF. Therefore, I believe it is important
to highlight the dangers of imposing artificial and unnecessary limitations in any new AUMF, in
particular imposing either temporal or geographic limitations. Such limitations may unduly restrict
or delay our ability to respond effectively and rapidly to terrorist threats to the United States. I
also want to highlight the danger of legal uncertainty that would inevitably arise if any new AUMF
were to repeal the 2001 and 2002 AUMFs.

Temporal and Geographic Limitations

1) Time
On August 21st of this year, President Trump announced the new U.S. Strategy in Afghanistan
and South Asia. A core pillar of that strategy is a shift from a time-based approach to a conditions
based approach. As the President stated, it is counterproductive for the United States to announce
in advance the dates we intend to begin, or end, military operations.

We simply cannot put a timeline on this fight against an adaptive enemy or we risk unintentionally
emboldening our enemies to outlast us. Conditions on the ground, not arbitrary timetables, must
guide our strategy.

2) Geography
Over the last 16 years, the United States has engaged in armed conflict largely against transnational
terrorist groups. The ill-advised nature of drawing imaginary lines, where on one side of the line
our enemy is safe while on the other side we may engage, should be obvious. To define the
geographic scope of military operations would undermine their efficiency by advertising to our

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enemies where to seek safe haven. This does not help and frankly would hinder the Presidents
efforts at preventing future terrorist attacks against the United States.

The absence of a geographic or temporal limitation in a supplemental AUMF would not lessen
Congresss authority. As Secretary Mattis noted in his recent testimony before the Senate Foreign
Relations Committee, the power of the purse remains firmly vested in [Congresss] hands, should
the executive branch not present a persuasive case for continuing the campaign.

Risks of Repeal

In addition, any subsequent AUMF should not repeal the 2001 and 2002 AUMFs. Just because
they are now 16 and 15 years old, respectively, is not an adequate reason for their repeal. As I have
discussed, these authorities have been in continuous use and application. You all provide legal
advice to organizations and institutions. What would you think of replacing the legal underpinning
for whatever it is your organization does, and has done for more than 15 years? I suspect you are
like me and would want to hear a compelling argument for doing so. And I have not heard one as
applied to the AUMFs. Repealing the 2001 and 2002 AUMFs would cause unnecessary policy and
legal uncertainty, which could would lead to additional litigation and could undermine our
ability to address threats to the United States effectively.

By no means am I suggesting that the drafting of a new AUMF is intended to create uncertainty.
Prior to August of this year, I was on the Hill and worked in positions where I helped draft this
kind of legislation. I very much know the time and effort my former colleagues expend in the
exercise of due diligence in drafting legislation that reflects Congresss intent. Its not the intended
outcomes that worry me those are open, visible, subject to debate and, where appropriate,
modification before a bill is finalized. Its the prospect of unintended consequences, latent and
lurking, that frankly keep me up at night. The risk of unintended consequences is inherent in all
legislation. But in the area of use of force, I assess the likelihood of unintended, problematic
consequences from any repeal of the AUMFs not as a risk but as almost certain. Because there is
not a compelling reason to incur if not inflict legal uncertainty on ourselves, repeal of the 2001
and 2002 AUMFs is unnecessary and ill-advised.

Expression of Unity/Support
After flagging these concerns with any subsequent AUMF, I will try to end on a positive note on
the role a new AUMF could play as an important expression of national unity.

As Ive stated throughout my remarks, the 2001 and 2002 AUMFs provide sufficient legal
authority for the United States to prosecute ongoing military operations.

That said, a statement of continued Congressional support for these operations would be welcome.
Such a statement would be a sign of the American peoples resolve. Both the Secretary of Defense
and the Chairman of the Joint Chiefs of Staff have indicated that our men and women in uniform
would benefit from a statement of our countrys unity and determination, letting them know that
the American people, in the form of their Congress, remain fully supportive of what our service
members are doing each and every day as they put their lives in harms way.

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Conclusion

I regret that Im not able to stay for the remainder of the program and have to depart rather
unceremoniously. I hope my remarks have contributed to your thinking on the legal authority for
the ongoing use of military force overseas, and set the conditions for my learned colleagues John
Bellinger and Bruce Ackerman to continue the discussion.

I know it will be a lively conversation that Im sorry to miss. Thank you again for the opportunity
to speak tonight.

Good night.