The Trump administration’s designation of the Islamic Revolutionary Guard Corps as a Foreign Terrorist Organization has spooked senators concerned over presidential war-making authority.
Key members of the Senate Foreign Relations Committee say the White House's attempt to link Iran and al-Qaida raises questions about the 2001 Authorization for the Use of Military Force, a post-9/11 legal framework for counterterrorism operations.
“The way successive administrations have interpreted the 2001 [AUMF], it’s a matter of interest. There’s clearly no connection between the Revolutionary Guard and the attack on our country on 9/11 … but they’ve already done stuff that is far-fetched,” Sen. Ben Cardin said.
The designation of the IRGC as a terrorist organization allows the Treasury Department to levy sanctions against anyone doing business with the group. But the State Department’s allegation that Iran is “harboring” al-Qaida members could trip the same prong of the AUMF used to authorize hostilities against the Taliban, which hosted al-Qaida training camps.
Upon announcing the IRGC designation, the State Department stated that Iran “harbors terrorists” within its borders, including members of al-Qaida, allowing them to “move money and fighters to South Asia and Syria.” Counterterrorism director Nathan Sales in February described the alleged cooperation as a “partnership of convenience.”
And Secretary of State Mike Pompeo refused to rule out the possibility that the AUMF could cover military action against the IRGC or Iran during his testimony to the Senate on Wednesday.
During an extended back-and-forth with Sen. Rand Paul on the question, Pompeo said he would “leave that for lawyers,” but added that Iran’s connections to al-Qaida are “very real.”
It is not clear the extent to which the Trump administration believes Iran, a Shia-dominated theocracy, is coordinating with al-Qaida, a Sunni terrorist organization. But the AUMF does not define how much contact is “AUMF-worthy harboring,” said Robert Chesney, a law professor at the University of Texas. “In short, this is to some extent up for grabs, for better or worse.”
The flare-up over the IRGC is one of the few times that senators have publicly grappled with the AUMF issue this year.
Last Congress, then-Foreign Relations Committee Chair Bob Corker convened a series of hearings on a proposed replacement, known as the Corker-Kaine bill. Under that proposal, the president could designate new “associated” forces, which Congress could nullify through legislation. The Trump administration opposed the bill.
Since that effort died, the 2001 AUMF had largely fallen off the legislative agenda.
Sens. Tim Kaine and Todd Young introduced legislation in early March to repeal what Kaine described as “zombie” authorizations—the 2002 Authorization for Use of Military Force in Iraq, and the original Gulf War authorization from 1991, which is still theoretically in effect. But the Kaine-Young bill would not address the 2001 authorization.
Repealing the 2001 AUMF is far more controversial, because it serves as the primary legal justification for counterterrorism operations across the Middle East.
“The question is: Repeal, but with what? There has to be some essence of some definition of what authorities do exist,” Foreign Relations ranking member Bob Menendez said. “The 2001 [authorization] has been used for just about everything. So that’s the concern here. How do you define an authorization that is limited in scope to meet the challenges of ISIL [and] al-Qaida but at the same time doesn’t allow an open door to continue to move forward?”
Sen. Marco Rubio, another member of the committee, said he would “love” to have a new AUMF but that the authorization would need to be flexible.
“It can’t be restricted geographically or to certain groups, because groups change their names. When you restrict it geographically, they change; they know exactly where to go to find safe haven,” Rubio said.
Without Corker leading the charge, the Foreign Relations Committee is unlikely to take up the war-powers bill this Congress. The new chair, Sen. James Risch, rarely crosses Trump publicly, preferring instead to focus on areas like competition with China.
On the House side, 46 Democrats and two Republicans have signed onto legislation from Rep. Barbara Lee that would immediately repeal the 2001 AUMF and then give the Congress eight months to craft a replacement. Lee said former House Speaker Paul Ryan quashed the bill two years ago.
Although some senators are optimistic that the AUMF debate will reemerge in the upper chamber, they are clear-eyed about the chance that Trump will sign legislation limiting his authority to conduct military operations abroad.
“We have allowed now, with three administrations, an interpretation of our 2001 authorization to give a blank check to the president,” Cardin said. “Why would any president want to give that up?”