The Forever War is Over. Its 2001 Authorization Lives On.

“Over the horizon” strikes against terror groups in Afghanistan will be conducted under the war powers act Congress authorized just days after the Sept. 11 attacks in 2001, the Pentagon said Thursday. 

The Biden administration has said such strikes will help the U.S. prevent terrorist attacks on American soil without the need for U.S. troops on the ground. 

But some in Congress question whether the two-decade-old law actually authorizes such strikes. In this week’s hearings, several lawmakers demanded details about how the strikes would be conducted.

“We want to see a plan, and we want to see it today,” Rep. Mike Rogers, R-Ala., the ranking member of the House Armed Services Committee told Austin Defense Secretary Lloyd Austin, Joint Chiefs Chairman Gen. Mark Milley and U.S. Central Command Chief Gen. Frank McKenzie Wednesday. 

Pentagon leaders have said that at least one of Afghanistan’s neighbors is allowing U.S. aircraft to fly through its airspace, but none is allowing U.S. troops to operate there. 

Even the Air Force assets needed for such strikes remains undecided, Air Force Chief of Staff Gen. C.Q. Brown told Defense One on Wednesday. Brown said the Air Force is talking with U.S. Central Command and the air component commander there to determine what’s needed.  

“It’s just a matter of what’s asked of us, then we’ll look at our capability to be able to respond and drive down any risk,” Brown said. 

But that still leaves a lot of questions, Rep. Andy Kim, D-Ca., said at Wednesday’s hearing.

“Is the airspace over Afghanistan currently considered sovereign airspace? Is it currently legal for the United States to conduct ISR sorties and airstrikes in Afghanistan? Under what authority is that legal?” asked Kim, who served as an advisor to Gen. David Petraeus and Gen. John Allen in Afghanistan. 

Responded Austin: “The same authorities we were using before.”

Kim asked if that meant the U.S. was operating under a 2014 defense cooperation agreement signed with the government of Afghanistan. 

“No,” the secretary said. “What we are prosecuting now are the authorities that were referred to by Gen. McKenzie earlier when he mentioned he would have to take that into a classified setting.” 

The Taliban, who control Afghanistan but have not yet been officially recognized by Washington as the country’s governing body, issued a statement on its official Twitter account saying the U.S. is violating international law by flying drones over Afghanistan. 

On Thursday, Pentagon press secretary John Kirby said drones are not the only way to hit targets in Afghanistan. 

“Over-the-horizon doesn't have to mean unmanned. It doesn't even always have to mean aviation,” Kirby said. “Over the horizon, as the secretary defined it, means that the strike, assets, and the target analysis comes from outside the country in which the operation occurs, and we can do that in a variety of means.” 

Asked what authorities Austin was referring to, Kirby said the strikes are being conducted under the 2001 war powers act. “As a matter of domestic law, the president has authorized U.S. forces to strike ISIS-K targets in Afghanistan pursuant to the 2001 AUMF.” 

“We have the authorities that we need,” Kirby said. 

But continued use of the 2001 AUMF comes as Congress has been looking to rein those war powers in, and regain some of its oversight role into planned strikes before they are carried out. 

Rep. Sara Jacobs, D-Ca., asked McKenzie how the military  will ensure that future strikes are actually targeting terrorists. A drone strike on Aug. 29 killed 10 Afghan civilians, including children and an aid worker employed by a California-based humanitarian non-profit. 

McKenzie’ said strike planners will have more time to doublecheck than they did on Aug. 29, when there was an imminent threat of another attack on U.S. personnel at Kabul airport. 

“I will note your comments on imminence the next time we have questions on war powers with some of the strikes,” Jacobs said.