Former CIA Director Supports Affirmation of the 2001 Authorization for the Use of Military Force Provision

May 25, 2011
Defense Drumbeat

Washington, D.C.---Former CIA Director and Air Force General Michael Hayden wrote to the Armed Service Chairman Howard P. “Buck” McKeon (R-Calif.), offering support and thanks for including an affirmation of the 2001 Authorization for Use of Military Force (AUMF) in this year’s defense bill. 

Hayden thanked Mr. McKeon in a letter and additionally outlined several critical reasons why the decade old AUMF needs to be clarified. Excerpts from the letter below make a strong case and reiterate the goal of the AUMF affirmation: codifying America’s legal right to pursue and detain terrorists and empowering those charged with that duty.

  • “In 2007, speaking to the representatives of our European allies, I attempted to outline for them how we at the CIA - and, indeed, how we throughout the American security community - viewed our task operationally, ethically, and legally: winning a conflict against al Qa’eda and its affiliates, a conflict that was global in its scope and which therefore required us to take the fight to this enemy. 
  • “Two Presidents, the Congress and the Courts have affirmed that this is indeed true, but this is a different kind of conflict, against a non-state adversary, and there are those who would cloud this question and claim that the laws of armed conflict do not apply and that we should confine our response to other (e.g., law enforcement) models.  As time has passed since 9-11, these arguments have become more commonplace and frankly more confusing to those on whom we depend for our safety.
  • “Those whom we have charged with protecting us need clarity in both their mission and in the legal underpinning that justifies it.  This Act does exactly that, in unambiguous language, adding yet another Congressional sanction to Presidential statements that a state of armed conflict exists between the United State and al Qa’eda and its affiliates.  The Act also reaffirms that activities routinely incident to such conflicts - like detention of enemy combatants for the duration of the conflict - are inherently justified.”

Hayden points out what should be self-evident from the bill’s language: The provision is nearly identical to the interpretation of the 2001 AUMF used by the Obama Administration, which U.S. courts have largely accepted.  The military also relies on the same language when deciding whom it can lawfully target or detain.  Here is a March 2009 memo from the Administration.

The original AUMF has been under constant legal attack as part of endless litigation related to detainee habeas cases.  Because of these ongoing challenges, the Administration’s interpretation may receive less favorable treatment in court if Congress refuses to affirm it. 


112th Congress