Jack Goldsmith

What to Do About Growing Extra-AUMF Threats?

 

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.

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