WASHINGTON — The Biden administration is open to several potential ways to tighten a much-stretched 2001 law that serves as the domestic legal basis for the open-ended “forever war” against terrorists around the world, a senior State Department official told Congress on Tuesday.
Testifying before the Senate Foreign Relations Committee, the deputy secretary of state, Wendy R. Sherman, favorably — but vaguely — cited ideas to give Congress some role in any future decisions to expand counterterrorism operations to additional terrorist groups or to new countries, as well as to require periodic reviews of such groups and countries.
“I think that there is a lot of work to be done,” she said. “It may be that those kinds of ideas aren’t the right ones, but those are things that we are willing to discuss — as well as other things that the Senate might put on the table.”
Ms. Sherman made her comments at a hearing that was officially devoted to pending legislation to repeal two other aging war-powers laws: the 1991 law that authorized the Persian Gulf War and the 2002 law that authorized President George W. Bush to invade Iraq and topple Saddam Hussein.
The committee has scheduled a session on Wednesday to mark up and vote on legislation to repeal the two laws. The House voted in June to repeal them, and the Biden administration said it supported that effort, saying they were obsolete.
But the Senate hearing on Tuesday repeatedly returned to the far more complicated question of what to do about the 2001 law, which has grown into the basis for sprawling global counterterrorism operations.
Congress enacted the 2001 law to authorize war against those responsible for the Sept. 11 terrorist attacks. But administrations of both parties have used it as the legal basis for military action against targets well beyond Al Qaeda and the Taliban in Afghanistan, including interpreting it to justify warfare against a Qaeda affiliate in Yemen, the Islamic State in Iraq and Syria, and Al Shabab in Somalia.
When Mr. Biden took office, he imposed new limits on counterterrorism drone strikes and commando raids away from conventional battlefields — places like Somalia and Yemen — by generally requiring advance White House permission. And in April, he ordered a withdrawal of American ground forces from Afghanistan, saying that “it is time to end the forever war.”
But after a six-month lull in American drone strikes in Somalia, the Pentagon in recent weeks has carried out three of them. Each time, it has claimed that the justification was “collective” self-defense of Somali partner forces battling Al Shabab, invoking an exception to Mr. Biden’s general policy requirement to seek White House permission ahead of time.
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.
Memorandums by the Justice Department’s Office of Legal Counsel approving both operations separately cited President Barack Obama’s and President Donald J. Trump’s constitutional powers as commander in chief as providing a sufficient domestic legal basis.
Both administrations also claimed the 2001 war law provided domestic legal authority to battle the Islamic State, which had grown out of Al Qaeda’s affiliate in Iraq, even though the two groups had split. By claiming it already had such authorization, the executive branch avoided problems with the War Powers Resolution — a Vietnam-era law that requires terminating hostilities after 60 days unless approved by Congress — while Congress has avoided having to cast tough votes.
Since taking office, the Biden administration has carried out airstrikes on Iranian-backed militias in February in Syria, and in June in Syria and in Iraq. Both times, the Biden legal team cited his constitutional authority as commander in chief to defend American troops in the region, rather than the 2002 Iraq war law.
Even as some senators cited Mr. Biden’s powers under the 2001 war law and the Constitution as a reason not to fear that repealing the 2002 war law would limit what the government could do, Mr. Menendez said it was hard to constrain the scope of executive authority.
The Justice Department’s expansive interpretation of presidential war powers, he said, “is a self-serving, one-way ratchet.”
“Over time, it has enabled the executive branch to justify large-scale uses of military force without any congressional involvement, stretching the Constitution in ways that would be unrecognizable to the framers,” he added. “A rebalancing is in order.”
