Defense Secretary Jim Mattis gave his conditional approval Monday to updating the authorization for the use of military force that Congress passed shortly after the 9/11 terror attacks while making clear that the current law was adequate.
The 2001 AUMF and the 2002 additional authorizing action against the Saddam Hussein regime in Iraq "remain a sound basis for ongoing U.S. military operations against a mutating threat" posed by terrorist groups worldwide, Mattis said.
"Though a statement of continued Congressional support would be welcome, a new AUMF is not legally required to address the continuing threat posed by al-Qaeda, the Taliban and ISIS," Mattis said.
However, both Mattis and Secretary of State Rex Tillerson in testimony to the Senate Foreign Affairs Committee warned against Congress writing a new authorization that would restrict military operations.
"Congressional oversight does not equate to operational control," Mattis said.
Tillerson warned against a new authorization that would geographically restrict a military response or set timelines on military commitments.
"Legislation which would arbitrarily terminate the authorization to use force would be inconsistent with a conditions-based approach, and could unintentionally embolden our enemies with the goal of outlasting us," he said.
Both secretaries maintained the president had the power to order military action that went beyond the existing authorization.
The power derived from the president's role as commander-in-chief under Article 2 of the Constitution and under Title 10 of the U.S. Code on the role of the armed forces, they said.
However, Mattis himself seemed unsure on which authority applied where.
When asked under which authority U.S. Special Forces were acting in the Philippines, Mattis said, "I'm not positive, I need to check on that."
Sen. Bob Corker, R-Tenn., the panel's chairman, seemed skeptical that Congress could reach bipartisan consensus on a new authorization despite his concern that the current one covered military action in 19 countries, from Cameroon to Kosovo.
He said some in Congress feared restricting the president's power to act against terrorist groups while others believed it unwise to give the president unrestricted authority.
Sen. Ben Cardin, D-Md., the ranking member of the committee, said he was concerned that the U.S. was committing to "forever" wars under the existing authorization.
"There needs to be more public discussion and light on these activities because I do not think the American people want the United States conducting a global, endless shadow war under the radar, covert and beyond scrutiny," he said.
The pressure to enact a new authorization has risen since the Oct. 4 ambush in Niger that killed four U.S. soldiers and wounded two others.
Several senators. Including Sen. Lindsey Graham, R-S.C., and Sen. Charles Schumer, D-N.Y., have since said they had been unaware that U.S. troops were operating in Niger in a train, advise and assist role.
However, Mattis said Presidents Barack Obama and Donald Trump routinely and repeatedly followed the law and notified Congress of the U.S. troop presence in Niger.
Sen. Rand Paul, R-Ky., stressed the authority to act against terrorist groups stemmed from the 9/11 attacks yet "nobody in Niger had anything to do with 9/11."
He also questioned the military's authority to act in Yemen, noting the drone strikes and periodic commando raids against an Al Qaeda offshoot.
"You guys just did it on your own," Paul told Mattis.
Congress last debated a new authorization in 2015 during the Obama administration, but that effort failed amid efforts by Democrats to write in limits on military activities and timelines for renewal of the authorities.
