Beware lawyers bearing bright ideas on how to resolve the ticking clock on White House authority to conduct counterterrorism operations across the globe. The silver tongues of rhetoric and reason may say current law need only an “update,” but their remedies would have just one, terrible effect: permanently institutionalizing not only the Global War on Terror, but the president’s relatively free hand in fighting it.
We’re talking of course about the AUMF (Authorization for the Use of Military Force) Against Terrorists, which was first approved right after 9/11 and has been used to wage every military/counterterrorism action and targeted drone killing since. While some are admirably (and duly) attempting to retire the AUMF to sunnier pastures in our post-war world, others apparently see its coming obsolescence as an opportunity to give it immortality.
These forces are making easy alliances with law ’n order politicians who are obviously not ready to see the heady days of green light killing, capturing (and indefinitely detaining) dim into the sunset. Obama Administration officials are also “increasingly concerned that the [AUMF] is being stretched to its legal breaking point,” as “new threats emerge” that have little or nothing to do with al Qaeda. So take heed, too, of politicians who seek to “reform” and codify the AUMF, ostensibly to “provide guidance” and a “balance of power between the legislative and executive branches” while “maintaining flexibility for the president to respond swiftly under threat of attack.” That was Senator Bob Corker, R-TN., as recently as March 20, on why congress needs to pass a new AUMF. But more on him later. Let’s get back to the lawyers for a moment.
Four legal experts involved in the Lawfare blog, which is sponsored by the Brookings Institution (which, contrary to popular belief, is not liberal, but rather a predominantly establishment think tank), published a 16-page report last month that suggests the AUMF “is becoming obsolete” and can no longer provide legal cover for the U.S to hunt, kill or imprison anyone it wants on the so-called global battlefield. Their views, not surprisingly, were echoed by witnesses and lawmakers in a recent Senate Foreign Relations Committee hearing, aptly entitled “Counterterrorism Policies and Priorities: Addressing the Evolving Threat,” at which Corker made his aforementioned statement.
The current AUMF allows the government to target “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” This was later expanded upon in the most recent National Defense Authorization Act and interpreted by courts over the years to include al Qaeda and “associated forces.” Until now, the government has found it sufficient enough to justify all of its overseas operations over the last 12 years.
However, the conflict described by the AUMF “is growing less salient as U.S and allied actions degrade the core of al Qaeda and the U.S military draws down its forces fighting the Taliban in Afghanistan,” argue the Lawfare lawyers in their report, “A Statutory Framework for Next-Generation Terrorist Threats”:
At the same time that the original objects of the AUMF are dying off, newer terrorist groups that threaten the United States and its interests are emerging around the globe. Some of the terrorist groups have substantial ties to al Qaeda and thus can be brought within the AUMF by interpretation …But this interpretive move is increasingly difficult as newer threatening groups emerge with dimmer ties, if any, to al Qaeda. As a result, we are reaching the end point of statutory authority for the president to meet terrorist threats.
The authors — Benjamin Wittes (co-director of Harvard Law School-Brookings Project on Law and Security), Robert Chesney (law professor, Texas University School of Law), Jack Goldsmith (Bush II-era Assistant Attorney General, Office of Legal Counsel, as well as Department of Defense attorney), and Matthew Waxman (law professor at Columbia University and director of that school’s neoconservative-funded Program on Law and National Security) – recommend congress should pass fresh statutory language authorizing the White House to identify and “list” new enemies that would be covered by an updated AUMF, adding and removing names of targeted terror entities as it sees fit:
One model to draw on, with modifications, is the State Department’s Foreign Terrorist Organization designation process. Under this process, the Secretary of State pursuant to specific statutory standards, in consultation with other departments, and following a notification period to Congress designates particular groups as terrorist organizations and thereby triggers statutory consequences for those groups and their members.
Here is what the current State Department list of designated terrorist organizations looks like today. The first thing that comes to mind when suggesting a similar template for the use of military force is the politics, which would be inevitable when you are inviting various levels of bureaucracy and congress to participate in designating targets. Take the recent State Department de-listing of the Mujahedin e-Khalq (MEK), which came after an audacious public relations blitz that involved millions in shadowy money, A-list campaigners and spokespersons, and a guerilla media war. Is this the kind of theater we are to expect as new terror groups cross the radar of competing Washington interests, or will groups pop on and off with little notice (until of course, their “associates” are flattened one day by a hellfire missile from the sky)?
But on a more immediate note, updating the AUMF the way the Lawfare lawyers (let’s call them CGWW) suggest, rests upon some really shaky assumptions, not only about the threats we allegedly face, but the effectiveness and trustworthiness of government. It also treads clumsily on the constitutionality of such an endeavor, like, does the president really have the right to wage what amounts to an open-ended war on foreign enemies of his own choosing? Why aren’t the powers he is afforded in Article II, Section 2 of the Constitution enough?
Luckily, there are a few cool legal heads leaping into the debate as they see this issue moving into alarming territory.
From Rosa Brooks, professor at Georgetown University Center and former Obama DoD legal counsel, at the Foreign Policy website last month:
A revised AUMF is likely to do precisely what the Bush administration sought to do in the run-up to the Iraq War: codify a dangerous unilateral theory of preemptive war, and provide a veneer of legality for an open-ended conflict against an endlessly expanding list of targets …
With or without the 2001 AUMF, no one seriously doubts that the president has inherent constitutional authority (and international law authority) to use force when necessary to prevent imminent and grave harm to the United States. But the key concepts there are “necessary,” “imminent,” and “grave,” which means that unilateral, non-congressionally authorized uses of force should be reserved for rare and unusual circumstances — as indeed they have been, for most of U.S. history …
In the end, it’s not that complicated. If we can’t shoehorn drone strikes against every “associate of an associate” of al Qaeda into the 2001 AUMF, we should stop trying to stretch or change the law. Instead, we should scale back the targeted killings.
Most interestingly, some of the best arguments against the CGWW report are coming from other legal writers for the Lawfare blog. Steve Vladeck, law professor at the American University Washington College of Law, and Jennifer Daskal, an adjunct professor and fellow at Georgetown University’s Center on National Security and the Law, offered this detailed response to their colleagues’ report, and engaged in a subsequent cross-blog debate about it, late last month:
“We believe that the CGWW proposal is, at best, a solution in search of a problem that does not exist. More than that, though, we fear that the sweeping and preemptive militarization of counterterrorism for which they argue is not just unnecessary on current facts, but also deeply misguided—and likely counterproductive—as a matter of policy and prudence.”
They go on to argue that:
1) “It is not clear that any splinter terrorist groups pose the kind of threat to the United States that justify a congressional authorization of military force—or the application of law-of-war tools.”
2) Article II powers are enough to face emerging threats that pose immediate danger to the country.
3) In the meantime, despite what their colleagues say, “law enforcement tools are—and have proven to be—effective in dealing with most terrorist threats.”
If and when the time comes that another non-state actor presents a threat to our national security that can’t adequately be remedied through existing authorities, we will stand by those who urge Congress to pass a new AUMF to handle such a new threat. But nothing in the CGWW proposal, in the public record, or in anything we hear from our friends within and without the government suggests that such a day is approaching.
For those of us who have been dutifully following the mission creep catastrophe we call the GWOT, there are two fire engine red flags flapping in the winds of this AUMF “reform” effort. One, the CGWW recommendation suggests that in order to get on “the list,” a group must show “sufficient capability and planning that it presents an imminent threat to the United States.” They go on to insist the criteria for this listing process should be “as specific as possible,” with congress making it “clear precisely what it means by key terms such as ‘imminent’ and ‘belligerent act.’” The process, in addition, would be “robust to ensure careful deliberation and strong accountability,” with auditing and reporting and transparency throughout.
This all sounds quite positive. It also sounds too good to be true. Every inch of the way, Congressional oversight of our national security policy has been a shame and a disaster. Our elected officials have not proven themselves worthy of this task.
Until the February filibuster by Sen. Rand Paul, who demanded clear distinctions in regards to the White House drone program (and even then, the administration has left many questions unanswered, like how does it define ‘imminent danger’?), congress has never exercised its full watchdog authority when it comes to military and CIA operations abroad. All we know now about the Executive Branch’s targeting killing has been leaked, like the secret DOJ “white paper” which offered a (lame) legal defense for the killing of Americans on foreign soil, and not offered freely.
“The search for meaningful constraints on power is indeed the central challenge of our constitutional system. But Congress has an abysmal track record of successfully reining in presidential uses of force overseas. And there is little cause for hope it will succeed here,” wrote Slate’s Deborah Pearlstein on the AUMF debate, in March.
Who’s going to trust the White House to get it right either? “For one thing, it was some of the best legal minds in the Obama administration that managed to produce the 2011 DOJ white paper on targeted killings of U.S. citizens, and that was a piece of legalistic garbage that enraged liberals and conservatives alike. Why imagine that administration input into a new AUMF would be any better than that DOJ white paper?” charged Brooks.
Nevertheless, Republican lawmakers like Sen. Corker seem to think it is their duty to create a new AUMF, as though it would be used to “constrain” the president’s overreaching powers of the last decade. Be sure to keep your ears open for this approach:
“For far too long, Congress has failed to fully exercise its constitutional responsibility to authorize the use of military force, including in the current struggle against al Qaeda, so I urge the committee to consider updating current antiterrorism authorities to adapt to threats that did not exist in 2001 and to better protect our nation while upholding our morals and values,” Corker said in his March statement.
But (Ret.) Maj. Todd Pierce, who served as an Army judge advocate general (JAG) in the Office of Chief Defense Counsel for the U.S Military Commissions, balks at such a suggestion. “Congress has no ‘constitutional responsibility’ to place the U.S in what amounts to a state of permanent war on the pretext that the mere threat of terrorism is the equivalent of a state of war.”
A permanent war state, fed and shielded by bureaucracy, sustained domestically by the politics of fear, seems to be what we are talking about here, not restraint nor constitutional awareness. Remember, at the same time this is going on, there is a major push to replace our withdrawing conventional soldiers from the war zone with Special Forces in Afghanistan, across Africa, the Middle East and beyond (forces which are already operating in 75 countries – that we know about — today).
Welcome, Team America, let’s just get you fitted with a brand new AUMF before we send you on your first mission. The lawyers — as always — have got your back.
NOTES IN THE MARGIN
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