As Barack Obama begins his second term as president of the United States, the nation confronts a range of formidable challenges at the intersection of ... continue reading]]> Tweet

As Barack Obama begins his second term as president of the United States, the nation confronts a range of formidable challenges at the intersection of national security and law.  Some challenges involve the inadequacies of both the existing criminal law and the contemporary laws of war to deal with transnational terrorists who are neither criminals nor lawful combatants but partake of aspects of both. Some involve the development of technologies of mass empowerment and mass destruction.  Some involve the proper interpretation of the Constitution and the best division of national security responsibilities among the legislative, executive, and judicial branches of the federal government, and the departments and entities within them.  Some involve understanding the ideas that motivate our adversaries.  Some involve the application of the international laws of war to complex conflicts abroad.  Some involve the changing character of the nation-state.  And some challenges involve several or all of these aspects at the same time.

In the essays that follow, members of the Hoover Institution’s Task Force on National Security and Law address several of the challenges with which the Obama administration and administrations before it have wrestled and with which the Obama administration and administrations that follow it will continue to grapple.  We do not pretend to agree on a solution or set of solutions. But we do agree on the nature of the problem.  And we are proud to share a defining sensibility.

The task force’s sensibility is defined in the first place by the conviction that questions of security and questions of law are increasingly intertwined and that the Constitution provides a sturdy and flexible framework that enables the nation to provide for its defense while securing citizens’ rights and respecting international law.  Our sensibility is also characterized by a clear recognition that the rise of transnational terrorism; the proliferation of increasingly inexpensive, mobile, and devastatingly destructive weapons; and the diffusion of power from nation states to international bodies and transnational organizations at one end of the spectrum, and to enterprising individuals at the other end, have generated novel and difficult questions of strategy and law.  It is marked by an acute awareness that war has increasingly come under the supervision of law, and that law has increasingly been employed as a weapon of war.   And it is committed to responding to the use and abuse of domestic and international law in the realm of national security by means of precise analysis, careful criticism, and prudent reform.

Such a sensibility, we believe, is crucial to advancing the nation’s interest in dealing effectively and lawfully with the daunting security threats it confronts.

Benjamin Wittes, member of the Hoover Institution’s Task Force on National Security & Law, discusses “many-to-many” threats. He examines cyberwarfare, as well as the potential ... continue reading]]> Tweet

Benjamin Wittes, member of the Hoover Institution’s Task Force on National Security & Law, discusses “many-to-many” threats. He examines cyberwarfare, as well as the potential dangers arising from biotechnology and robotics, and looks at what the Obama Administration can do to address these growing national security challenges.

Kenneth Anderson discusses the imperatives of American efforts to deny territory to international terrorists and examines the limitations of drone warfare.

Threats to American national security come from three sources: major powers, malevolent states, and weak or failed states.   There is, obviously, nothing new about tension ... continue reading]]> Tweet

Threats to American national security come from three sources: major powers, malevolent states, and weak or failed states.   There is, obviously, nothing new about tension with another major power, with the most obvious current challenge coming from China.

The other two sources of threat to American national security—malevolent states with effective national control but limited aggregate material capabilities and states that cannot control their own territory (failed or weak states)—are historically unique.  Threats from both of these sources are the result of the decoupling of underlying material capability (as indicated by GDP, population, military spending, and technological capacity) and the ability to inflict harm especially with nuclear and biological weapons.

In the case of malevolent states these capabilities are controlled by the state apparatus.  Although the ability of malevolent but under-resourced states to inflict catastrophic damage is new, the measures to counter these threats are not.  They include offensive, defensive and deterrent military actions, as well as economic sanctions.

In the case of weak or failed states—states that cannot control their own territory—both the threats and some of the measures to address them are new.   The threats derive from the ability of non-state actors to stage mass terrorist attacks with or without weapons of mass destruction.  We have no good way of estimating the probabilities of such attacks, but they are not vanishingly small.  One way to address these threats—contracting out some aspects of internal security to external actors—involves departures from the conventional norms of sovereignty but not from accepted international legal practice.   Conventional sovereignty involves international recognition (international legal sovereignty), the independence of domestic authority structures from external influence (Westphalian/Vattelian sovereignty), and effective regulation of activities within and across a state’s borders (domestic sovereignty).   Conventional sovereignty has been compromised in many different ways.  States have used their international legal sovereignty to compromise their Westphalian/Vattelian sovereignty to, for instance, the European Union.  As long as these contracts are voluntary they pose no problem for international law. Failed and weak states do not have effective domestic sovereignty.

One way to address security threats emanating from weak and failed states is to secure agreements that give the United States the right to combat enemy forces within the target state’s territory; that is, to have the target state contract away some aspects of the provision of security.   There have been agreements between the United States and a number of Latin American countries to send teams of armed advisers (military, DEA), some of which have subsequently engaged in kinetic operations in the host country.  Yemeni political leaders have publicly endorsed the use of American drones.  The US government has used drones in Pakistan relying on tacit understandings.

There is no international regime—no shared agreements on principles, norms, and rules that govern targeted security operations—designed to reduce transnational threats emanating from weak and failed states.  In most cases to date the United States has relied on agreements with host countries.  In some cases it has acted unilaterally, as when Navy SEAL teams killed Osama bin Laden without approval from Pakistan.  Where agreements have existed they have been tailored to specific circumstances; when it has acted unilaterally the United States has invoked some version of the right of self -defense.  Developing a shared set of principles, rules, and norms, will be challenging because the conventional norms of Westphalian/Vattelian sovereignty pose legitimacy problems for any explicit agreement that contracts out the provision of internal security to a foreign actor, and because in some cases the interests of the United States and a potential target country might be so divergent that no agreement is possible.

There are at least three policy options that the United States could consider:

1. A general UN-type convention legitimating the contracting out of internal security.  This will never happen given the commitment of the G77 to non-intervention.
2. Continuing with the present strategy of relying on tailored agreements concluded with individual states, and invoking the right of self-defense where no agreement is possible.
3. Creating a Global Security Partnership.  This partnership would be a coalition of the willing.   Members of the coalition would sign on to a set of principles that would re-state existing norms including:

• The obligation of a state to provide security to its own population
• The obligation of a state to combat transnational threats emanating from its own territory
• The right of a state to freely enter into an agreement with another state to provide security
• The right of self defense

Such a coalition of the willing could reduce the legitimacy burden that now makes it more difficult for the United States to address transnational threats emanating from weak or failed states, by making it easier for political leaders in target states to contract out security provision.

Those who volunteer to defend their country know they are putting their lives at risk.  But the troops and their families are only just beginning ... continue reading]]> Tweet

Those who volunteer to defend their country know they are putting their lives at risk.  But the troops and their families are only just beginning to understand the extent to which they are putting their mental health at risk.  As we get better at keeping wounded warriors alive, we need to get better, and more serious, about developing tools for healing the injuries to the mind and brain that are often at least as destructive as more visible wounds.

Because of advances in medical technology and in body armor, soldiers are surviving combat situations that would have killed them in the past, but returning with traumatic brain injuries and with memories of mind-breaking horrors. Our military commitments in the wars on terrorism have required our troops to redeploy again and again, in some cases as many as eight times, such that nearly 13,000 soldiers have spent at least three cumulative years in Iraq or Afghanistan.  Military historians call the frequency and cumulative length of the troops’ tours of duty historically unprecedented; compared with previous wars, deployments have been more frequent and breaks between tours are shorter.  Given that redeployment is a major risk factor for post-traumatic stress disorder, this modern style of waging war comes with a profound cost to the troops: widespread psychological injury.

There is nothing new about veterans suffering psychologically and spiritually when they return from war, though what we now call “post-traumatic stress disorder” (PTSD) has received different labels at different times, most of them unflattering. These include “war neurosis,” “malingering,” “battle fatigue,” and “shell shock.” Three thousand years ago, an Egyptian veteran named Hori wrote about the feelings he experienced before returning to the battlefield: “Shuddering seizes you, the hair on your head stands on end, your soul lies in your hand.”  Herodotus describes an Athenian warrior who permanently lost his sight when the soldier standing next to him was killed, although the blinded soldier “was wounded in no part of his body.” He tells also of Aristodemus, who was so shaken by his experience in war that he was nicknamed “the Trembler.”  Like a growing number of veterans of the wars in Iraq and Afghanistan, Aristodemus would eventually commit suicide.  What is new is that with evolving brain-scan technologies such as magnetoencephalography (MEG), it is now possible to see the impact on the brain of these previously invisible wounds.   We now understand that PTSD is not a sign of weakness.  It is an injury to the brain that causes measurable changes in the body.

Estimates of the percentage of troops who will eventually be diagnosed with PTSD vary, in part because the symptoms of psychological injury can take years or decades to manifest—a fact that studies of the costs of war fail to recognize.  Indeed, one of the reasons the Veterans Health Administration (VA) is so overwhelmed with claims is that Vietnam vets are increasingly seeking treatment for PTSD associated with that war, decades after the war’s end.  Approximately twenty percent of military personnel returning from Iraq and Afghanistan have been diagnosed with post-traumatic stress disorder or major depression.   According to data collected by the Army, less than half are seeking treatment, in large measure because of the stigma. But it is not only stigma that prevents military personnel from seeking and receiving medical care for PTSD: The backlog in disability cases before the VA—which exceeded 900,000 in January 2013—is another significant factor.

Failure to provide timely treatment to returning vets suffering from PTSD can be dangerous, as PTSD is a risk factor for both violent crime and suicide.  Suicide is now the leading cause of death in the US Army, and the risk among military veterans is even higher: More than 6,500 veterans commit suicides every year—which adds up to a figure higher than the total number of military personnel killed in combat in Iraq and Afghanistan since the wars on terrorism began.

PTSD is now the most widespread injury suffered by returning troops, and yet, ten years into the wars on terrorism, we remain unprepared to handle the growing numbers of troops seeking treatment.  Lost productivity accounts for more than half the costs of PTSD and major depression.  But according to RAND, evidence-based treatment would pay for itself within two years because it would reduce medical and mortality costs, and the veterans would get back to work.[i] Treatment needs to be made more accessible. Thoughtful leadership is required to remove the stigma of psychological wounds; one way to erode the stigma would be for the president to bestow purple hearts on vets whose wounds are not fully visible.  We also need much better studies of the efficacy of treatment over time.  Treatments offered by the VA—such as eye movement desensitization and reprocessing (better known by its acronym, EMDR) and cognitive behavioral therapy—have been shown to be effective, but more study is needed about their long-term impact.  It is important to realize too that in many cases PTSD results in a kind of spiritual injury, so we should be studying the impact of spiritual practices such as meditation, which have been shown to be effective for other anxiety disorders.

By choosing an approach to military-personnel policy that requires redeployment to combat zones, we have inadvertently increased the risk to our troops of sustaining psychological wounds. With PTSD turning out to be the most prevalent injury among returning veterans, thousands of men and women who willingly risked their lives to serve their country are realizing that they were actually risking their wellbeing.  It is incumbent upon the American people and our leaders to ensure that our troops get the help they need upon their return home.

The last four years should have been a good period for executive-congressional relations in the areas of national security and foreign affairs.  The president, vice ... continue reading]]> Tweet

The last four years should have been a good period for executive-congressional relations in the areas of national security and foreign affairs.  The president, vice president, and secretary of state were former Senators.  They all viewed President George W. Bush as too inclined to bypass or ignore Congress and they promised to do better.  And the Obama administration started with Democratic majorities in the House and Senate.

It is thus surprising that the past four years have been notable for inter-branch clashes and paralysis on some major national security agenda items, with the administration failing to engage Congress or operating in a slowly reactive mode, while many congressional Republicans remain in an obstructionist mode.  In the second term, the Obama administration will need to pick its legislative priorities more deliberately, engage with allies and opponents in Congress more actively, and be willing to negotiate compromises or wage aggressive campaigns on key issues.

Congress has repeatedly stifled the president’s signature counterterrorism promise to close the Guantanamo Bay detention facility.  Congress’s opposition has been more than political.  Beginning with legislation in 2010 when Democrats controlled both houses of Congress, Congress has consistently placed legal barriers on the president’s ability to transfer Guantanamo detainees or to try them in civilian courts in the United States. After hinting in his speech at the National Archives in 2009 that he would work with Congress on these issues, Obama has put forward no proposal of his own, nor has his administration been willing to explore possible compromises on long-term Guantanamo policies, instead playing defense against moves by congressional blocs with their own Guantanamo agendas.  That defensive strategy has included a series of veto threats, which were always abandoned in the end and now carry little credibility.

With regard to war powers, the administration barely escaped a significant congressional rebuke after it failed to obtain congressional authorization for the operations in Libya in 2011 or at least to advance a convincing account for why such authorization was not needed.  The administration conducted international diplomacy effectively, and obtained UN Security Council and Arab League endorsement of military operations to protect Libyan civilians from slaughter.  However, on the domestic front it alienated even congressional supporters of its policy with poor early consultation on the Hill.  In the end, Senate Majority Leader Harry Reid prevented the Senate from taking up a resolution passed by the Foreign Relations Committee that would have authorized the operation but rejected the administration’s strained interpretation of the War Powers Resolution.  Throughout the Libya crisis, the administration’s approach toward Congress was passive and tentative.  It was fortunate for the administration that Congress was splintered and few members were willing to defend its institutional prerogatives, at least within the limited timeframe of the intervention.  But Obama might not be so lucky the next time.

As to treaties, the administration garnered super-majority Senate advice and consent on a record-low number of agreements in its first term.  Despite a strong effort by Secretary of State Hillary Clinton and the Navy leadership, the administration failed to get the UN Convention on the Law of the Sea out of the Senate Foreign Relations Committee.  Once again, part of the explanation for failure was the administration’s poorly timed and coordinated engagement of the Senate on the issue.  In the face of Senate Republican portrayals of other global treaties as threats to US sovereignty, the White House failed to throw its full weight behind its valid arguments that the Law of the Sea Convention would strengthen the US position with respect, for example, to crisis hotspots in Asia and in commercial spheres.

To be clear, the Obama administration has scored successes, too.  For example, putting aside the policy merits, it worked reasonably well with Congress on the completed wind-down of the Iraq war.  It will need to do the same with respect to the planned wind-down of the Afghanistan war and in developing a long-term strategy for Afghanistan and Pakistan.  Much of the blame for policy incoherence on many national security issues such as cybersecurity lies with Congress, which is infected by political polarization and dysfunction as much in international affairs as it is in domestic affairs.

Going forward, the Obama administration will need to bring the same kind of sustained attention and hard-nosed strategic thinking to its legislative agenda on national security issues as it has on some major domestic policy issues.  First, it will need to be selective in its legislative agenda and then wage aggressive campaigns on matters it labels national security priorities.  It did so early in the first term with respect to the New START Treaty, which was in danger of collapse until the administration went all out for it.  Obama’s team enlisted influential allies from previous Republican administrations, engaged in a serious communications campaign at the highest levels, and negotiated as necessary to get the key votes in favor of the treaty.

On some issues, the administration will need to decide on a coherent policy internally and then more actively engage both its allies and opponents on Capitol Hill.  One area where this will be important is the legal architecture of counterterrorism policy.  It is widely understood that continuing to rely on the September 2001 congressional Authorization for Use of Military Force as the basis for detention and targeting operations is increasingly problematic as al Qaeda splinters apart and as the United States winds down combat operations in Afghanistan.  The Obama administration also maintains publicly a commitment to closing Guantanamo.  Yet it has not come forward with proposed legislative frameworks for dealing with these issues.  Even though the president has said repeatedly that he wants to work with Congress on a more durable legal architecture for counterterrorism operations, the administration has been reactive and appears to be undecided about what, if anything, it wants from Congress.

Another area in which executive-congressional relations will feature heavily is Iran’s nuclear build-up, surely one of the most delicate and complex international crises the administration will face this year.   After engaging seriously only at the last minute, it has had to swallow several times congressionally-mandated sanctions that it regards as counterproductive.  As the administration tries to ramp up pressure, it will need to convince skeptical members of Congress that it is applying tough diplomatic pressure on other UN Security Council members and on Iran’s trading partners.  If—under the most optimistic scenarios—it reaches a satisfactory negotiated solution (or establishes a process toward one) with Iran, it will need Congress onboard; otherwise it will find its freedom to maneuver and deliver on assurances severely constrained.

The Obama administration came to office believing—correctly—that national security and foreign policy are most sustainable with clear congressional support.  That has turned out to be harder than expected for Obama to achieve, especially after losing the Democratic majority in the House and facing Republican caucuses that are not eager to compromise, but he can play more deftly the hand he has.

Over the last four years, nearly all the attention of commentators—supportive and critical alike—regarding US counterterrorism operations abroad has been focused on drone strikes. While ... continue reading]]> Tweet

Over the last four years, nearly all the attention of commentators—supportive and critical alike—regarding US counterterrorism operations abroad has been focused on drone strikes. While drone warfare issues are important, it is a mistake for the public debate over US counterterrorism operations abroad to be so narrowly confined to targeted killing without considering the broader objective of denying terrorists territory.

Increasingly, the US government’s counterterrorism strategy has embraced the view that although targeted killing of identified terrorist leaders is highly successful and essential, long-term strategy must also ensure that terrorist groups neither gain control of territory nor maintain territorial safe havens in which to regroup, train, rebuild, and finally launch attacks abroad.  Counterterrorism thus has a territorial element separate from targeted killing.

Territorial denial takes two distinct forms.  One form targets terrorists who establish safe haven in some ungoverned or lightly governed part of a weak state, or who are allowed such by a sympathetic state.  The terrorist group is able to inhabit territory as a matter of “physical” geography—it gets a place to hide—but it does not politically govern the territory or its population. The other form of territorial denial focuses on terrorists attempting to establish governing control of the areas they inhabit.

The United States might address a territorial terrorist threat by acting directly, through its own forces, to eliminate the safe haven by striking not just at the group’s leadership but at its training camps, bases, supply routes, etc.  Alternatively and more likely, the United States might address the threat through military and intelligence support to the legitimate government of the territory.  While drone strikes and targeted killing of individuals figure importantly in denying terrorists safe haven, so too must support for the local government because denial of physical territory requires a government both willing and logistically able to assert sovereignty over the zone.  In current US strategy, whether in Yemen or in the Horn of Africa, this involves providing military and intelligence advisers, logistical support, and intelligence resources designed to bolster the legitimate government in its conflict with the terrorist insurgents.  Targeted killing of individuals and denial of physical geography in which to take haven are complementary elements of US strategy.

In its territorial denial role, however, the United States might act as a partner in something amounting to a conventional counterinsurgency war—carried out by local government partners on the ground with American air, intelligence, and logistical support.  The United States might also go further and serve, in effect, as the air arm of the local government in what might rise to the level of a civil war against a terrorist group that seeks to defend its safe havens against the territory’s legitimate government, but which also has transnational terrorist aims against the United States.

This is what the US government appears to be doing in Yemen, but without being willing openly to own up to what amounts to becoming co-belligerent with the Yemeni government in a conventional civil war against a common enemy of both the US and Yemeni governments, al Qaeda in the Arabian Peninsula.  Drones are used in Yemen not only, or even mostly, for the targeting of individual high value leadership.  More often drones are used in so-called “signature strikes,” which, instead of targeting identified individuals, target groups of conventional fighters that present characteristics indicating they are members of “hostile forces.”

If treated within the framework of targeted killing, air attacks on groups on the basis of behavioral “membership” signatures appear to be a relaxation of the standards of individualized “targeted killing.” In the view of the critics, the US government couldn’t figure out who was a target and who wasn’t, so it just blew them all up as a group.  However, drone strikes against groups of fighters are more accurately understood as a type of conventional air targeting in a conventional civil war, in which it is lawful to target those who appear to be operating as “hostile forces.”

The Obama administration has not so far been willing to admit that this is what is really going on, preferring instead to treat signature strikes as part of targeted killing programs, presumably because of the perceived political risks of attempting to explain the distinction. Whatever political difficulties making the distinction poses for the administration, however, over the longer term the deliberate conflation of two distinct situations of targeting risks political and legal delegitimation of the crucial paradigm of individualized targeted killing through drones.  Signature strikes, whether direct US military operations or conducted by a local government with US support, are not a form of targeted killing; they are part of territorial denial.

The form of territorial denial concerned with political control of territory—beyond the mere physical presence of terrorists—aims to deny terrorists “governance” or “political” geography. Afghanistan under the Taliban illustrated the risks of allowing a radical terrorist group to incorporate itself into, or operate parallel to, the political structures of an entire sovereign state. Whatever else happens in Afghanistan, the US national security establishment understands that it cannot allow Afghanistan again to become a political territory in the hands of a terrorist group that has both governing control (of the territory’s population, institutions, resources, and legitimacy, however narrow) and ambitions to commit acts of terrorism abroad.

But Afghanistan is not the only place where this is a concern. Mali, for example, presents some of the same issues of political control of territory.  The Islamist forces battling the government seek not merely physical space to locate themselves, but governance over the territory.  Al Qaeda in the Islamic Maghreb (AQIM) has ambitions internally in Mali as well as externally.  It is therefore unsurprising that the United States is backing efforts by France and other countries to deny the group both its aims. And in this case, concerns of the United States and other countries about terrorism overlap with concerns about human rights in the brutal, indeed horrific, governance of zones AQIM already controls, as well as with traditional international concerns for reestablishing the recognized sovereign government of Mali.

The US government certainly does not want to engage in more ground wars.  But though its strategy recognizes the value of targeting particular individuals in order to weaken, disrupt, and destroy terrorist groups, it also acknowledges that strategically it is just as crucial to deny territory to terrorist groups.  US strategy seeks a way to do this (without undertaking more ground counterinsurgency wars) that addresses the two distinct modes of territorial denial—physical safe havens and governance control of a whole political geography.  The United States is moving strategically, it appears, toward providing allied governments with military and intelligence advice and support designed to deny terrorists both physical territory and political territory.

In some cases, as in Yemen, it is willing to act as the government’s air arm in a civil war.  In other cases, US support might go to non-state armed groups, whether as alternatives or supplements to the national government.  Those groups might start out as human intelligence networks.  But as situations evolve (in Afghanistan, for example) they might become something much closer to “proxy forces,” supplied and supported by the US government as a mechanism of denial of political territory to terrorist groups.  There is much to recommend this strategy as a whole; it goes without saying, of course, that it also raises a host of legal, moral, and political legitimacy questions distinct from those raised by drone warfare alone.

Imagine a world in which you can attack anyone—anywhere—and in which anyone, anywhere, can attack you. Imagine a world in which you might pose a ... continue reading]]> Tweet

Imagine a world in which you can attack anyone—anywhere—and in which anyone, anywhere, can attack you. Imagine a world in which you might pose a strategic threat to an established government, and in which governments might require your assistance to provide basic security goods to their citizens. Imagine a world in which the basic premise of Hobbes—that empowered government can protect you—were no longer clearly true, a world in which even radically-empowered government proved hapless before more numerous empowered citizens . . . citizens like you.

This is the world the march of technology is quickly building. And we have no idea how to govern it. Even just beginning the daunting process of grappling with this governance problem constitutes a major challenge for the Obama administration in its second term.

The emergence of what I call the world of many-to-many threats and many-to-many defenses is already starkly visible in cyberspace—with its strange mélange of international crime, vigilantism, government enforcement, espionage, and sabotage. But it is a grave, if common, mistake to think about the problem narrowly as one of cybersecurity. Cyberspace, after all, is merely the platform on which the many-to-many threat and defense environment has developed the furthest to date. So when dealing with networked computers, we are shocked—but not too shocked—that Anonymous can take on major corporations. And we are shocked—but not too shocked—that Wikileaks can take on the US government. And we are shocked—but apparently not too shocked, since the case only merits in-passing news coverage—that a fellow in California can write malware to turn the web cameras of hundreds of women and girls on them, take compromising pictures of them, and then use those images to extort them into making pornographic videos for him.[1]

But the focus on cybersecurity obscures a larger truth: the very features of the cyber domain that enable these most asymmetric of attacks across great distances exist on other platforms too. The key features of these technologies of mass empowerment include development in the unclassified sector for non-military or dual-use purposes, wide public dissemination both of the core insights in the field and of the key technological components and materials, the resulting low cost of entry to new comers who want to engage the technology, and a certain quality of networking that creates difficulty tracing and attributing attacks quickly and authoritatively. All of these factors already exist in the life sciences, where individuals can manipulate and enhance—even create from scratch—viruses and bacteria. They are fast developing in robotics, which governments already use to conduct highly-lethal remote attacks, and to which individuals have ever-increasing access. How long do we really think it will take before a gun enthusiast arms a remotely-piloted robotic aircraft with his favorite handgun (very doable by a competent layperson with a few thousand dollars to burn)—or before a very scary person of one sort or another arms a crop-dusting drone (which already exist) with aerosolized anthrax. Thinking narrowly in cybersecurity terms is a little like conceiving of the problem of climate change in terms of highly localized impacts and adaptations. Doing so may be necessary to break the problem down to a manageable size, but it also risks obscuring the larger picture.

The challenge of addressing this larger picture is not a discrete policy puzzle, but a larger problem of governance of a world in which power gets distributed quite differently from the ways we are accustomed to seeing it dealt out. To put the matter another way, governance in this space is undertheorized. With policy problems—even very difficult ones—we might say that the Obama administration should take this course or that course so as to avoid a particular bad set of outcomes or to encourage a particular good set of outcomes. Here, however, we are talking about something more tectonic, something that touches the very reasons we have governments at all. And it is probably not reasonable to expect the Obama administration to spend its second-term energy refining our ideas about liberal democracy to enable us to prevent technologies of mass empowerment from creating a global state of nature. The short-term policy problems—from America’s fiscal crisis to immigration reform to defeating the remains of al Qaeda—will fully consume the administration. This governance challenge is a generational one, one that no single administration can address fully.

But neither can the Obama administration ignore the problem. And cybersecurity offers one avenue into the broader conversation the administration should lead. The security challenges and opportunities associated with technologies of mass empowerment have already reached critical mass in this area, after all, and cannot be ignored. But it is crucial for policymakers as they address them to avoid stovepiped thinking and understand that they are also creating models for evaluating a broader array of security challenges we are sure to see over the coming years and decades. The principles we establish for issues such as jurisdiction, sovereignty, attribution, civil liberties and surveillance, liability, regulation, and the relationship between the public and private sector will matter enormously as we begin mentally applying the model we develop in cyberspace to other more-incipient platforms. Furthermore, and perhaps more fundamentally, it is urgently necessary to begin integrating an utterly changed threat and defense environment into our strategic thinking about what threatens us, what protects us, and how both law and doctrine can encourage or inhibit key actors from playing constructive roles in making our environment more secure. Presidential rhetoric has a role to play here in conditioning us to begin thinking differently about what security is and where it originates.

President Obama is not going to solve this problem in his second term, but he can start a conversation about it. History will not remember kindly leaders who—as so many presidents have with climate change—decide that the problem is simply too big to address and therefore ignore it.

The legal foundation for the post-9/11 “war on terrorism”—the September 2001 Authorization for Use of Military Force (AUMF)—is quickly becoming obsolete.  A major challenge for ... continue reading]]> Tweet

The legal foundation for the post-9/11 “war on terrorism”—the September 2001 Authorization for Use of Military Force (AUMF)—is quickly becoming obsolete.  A major challenge for the second-term Obama administration is whether and how to supplement or replace the AUMF.

The AUMF authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .”  The authorization of “force” in the AUMF is the basis for detention and targeting of al Qaeda and Taliban members.  In addition, both the Bush and Obama administrations, along with some courts, have construed the AUMF to extend to co-belligerents.  This legal construction is the basis for detention and targeting of forces “associated with” al Qaeda, such as al Shabbab and al Qaeda in the Arabian Peninsula.

This framework is becoming obsolete because some newly threatening Islamist terrorist groups do not plausibly fall within the AUMF.  Many of these groups—such as al Qaeda in the Islamic Maghreb (in Northern Africa) or the al-Nusra Front (a rebel group in Syria associated with al Qaeda in Iraq)—have no direct links to al Qaeda and unclear ones to al Qaeda affiliates.  Regardless of where the precise outer boundaries of the AUMF lie, there is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the AUMF.

What can the Obama administration do to close this gap?

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower.  Third, the president probably cannot detain threatening terrorists for long periods under Article II.  (The Obama administration has shown no proclivity to detain non-legacy terrorists, but even the possibility of long-term detention is off the table with an Article II strategy.)

A potentially better alternative—one that forms a stronger legal and political basis, and that would permit detention—is for Congress to enact a new AUMF to cover the new threats.  There are three basic statutory options.

First, Congress could authorize the President to use force that is consistent with his extant powers under Article II.  This approach would add Congress’s political and legal weight to exercises of self-defense under Article II.  The main problem is that it would be entirely unclear against whom Congress was authorizing force.  Also, this approach might not include a detention authority, although that problem could be fixed in the statute if Congress expressly authorized detention authority.

Second, Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach.

Complicating all of these statutory possibilities is the fact that the Obama administration does not want the legacy of seeking and signing a new AUMF that puts the “war on terror” on a broader and more permanent foundation.  This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.