Top Pentagon lawyer: US still in ‘armed conflict’ in Afghanistan

Top Pentagon lawyer: US still in ‘armed conflict’ in Afghanistan

The U.S. is still in an armed conflict in Afghanistan, despite the U.S. ending its combat mission in Afghanistan in December, said the Pentagon’s top lawyer on Friday.

“There is no doubt that we remain in a state of armed conflict against the Taliban, al-Qa’ida and associated forces as a matter of international law,” Pentagon general counsel Stephen Preston said during a rare address at the Annual Meeting of the American Society of International Law. 

“Although our presence in that country has been reduced and our mission there is more limited, the fact is that active hostilities continue,” Preston said. 

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“Our military operations in Afghanistan remain substantial,” he added. “In short, the enemy has not relented, and significant armed violence continues.” 

It was a message somewhat at odds with the president’s declaration in December that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”

Preston’s remarks came as part of a defense for the administration's ongoing usage of the 2001 authorization for use of military force, despite some Democrats arguing it is too broad and essentially a blank check for endless war.

Preston said the 2001 AUMF not only provided statutory authority to use military force in Afghanistan, but also against the Islamic State in Iraq and Syria, and against Al Qaeda’s affiliate in Yemen and elsewhere.  

“The 2001 AUMF continues to provide authority for our ongoing military operations against al-Qa’ida, ISIL and others, even though the conditions of the fight have changed since that authorization was first enacted,” Preston said, using another acronym for ISIS.

The White House submitted a draft AUMF proposal in February, but Republicans and Democrats fiercely disagree on its provisions, with no signs of any movement. 

Rep. Adam Schiff (Calif.), the House Intelligence Committee's ranking Democrat, said he still supported crafting a new AUMF against ISIS, and sunsetting that as well as the 2001 AUMF after three years. 

Doing so would allow a new administration to review both efforts, and “a sunset on both measures ensures that neither military effort continues on autopilot,” he told The Hill last week.

Preston said the president stands by his 2013 position to “refine and ultimately repeal” the 2001 AUMF. 

He said it would also be important to pass a new ISIS-specific AUMF, to show the world and U.S. troops that the U.S. government was united against ISIS, and to set limits for the conflict.  

However, he argued that the 2001 AUMF was not a blank check for war, and did not provide “unlimited flexibility” for the president. 

Preston also floated the idea of a follow-on 2001 AUMF for future counterterrorism missions, that would not greatly exceed what is needed, but allow for “a series of persistent, targeted efforts to dismantle specific networks of violent extremists that threaten America.” 

Ultimately, he said, as long as hostilities continued, the use of force under the 2001 AUMF would continue. 

“Where the armed conflict remains ongoing and active hostilities have not ceased, it is clear that congressional authorization to detain and use military force under the 2001 AUMF continues,” he said. 

Preston also sounded unsure of when those armed hostilities would end, saying they would continue "at least through 2015 and beyond." 

“As my predecessor explained at the Oxford Union in 2012, there will come a time when ‘so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed,’” he said. 

“Unfortunately, that day has not yet come,” he said.