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After the AUMF, II: Daskal and Vladeck Reply

By and
Monday, March 18, 2013 at 7:16 PM

We appreciate Jack’s quick and comprehensive clarification of his views—and of what the CGWW proposal we critiqued last night seeks to achieve. Like Jack, we want to start by emphasizing the many areas of agreement between us and CGWW in order to help illuminate the key points of disagreement. (We’ve also had the benefit of hearing Bobby’s views at today’s thoughtful conference at the Center on National Security at Fordham Law School—one panel of which included the two of us and Bobby.)

First, we wholeheartedly agree that the September 2001 Authorization for Use of Military Force (“AUMF”) cannot comfortably—and should not—be shoehorned to cover “associates of associates” of al Qaeda, or what has been colloquially referred to as “extra-AUMF threats.” We thus fully share Jack’s concerns about the AUMF being used to justify “secret and ever-more-tenuous expansions of the AUMF.” In fact, as we understand it, based upon the public record, the notion of “associated forces” being applied beyond a small number of groups operating in northwest Pakistan—and arguably AQAP—stretches the AUMF close to, if not beyond, its breaking point. If anything, a key virtue of the CGWW proposal is to draw needed attention to this often-neglected point. Thus, we also agree, as Jack seems to suggest, that the Obama Administration should make public exactly which groups it believes fall into the category of associated forces. This increased transparency should happen, in our view, regardless of what else comes of this conversation—all the more so given that it does not depend upon Congress.

Second, we agree that a range of threats exist that are not covered by the AUMF. This was true on and before 9/11, and on September 18, when the AUMF was enacted. Congress nonetheless consciously—and, in our view, rightly—chose to limit the AUMF to those specific groups that were responsible for the attacks on the homeland, i.e., al Qaeda, the Taliban, and, by implication, co-belligerent forces that joined al Qaeda in hostilities against the U.S. in and as part of that armed conflict.

We diverge, however, in what these two overarching premises portend.

To cut to the chase, there are, in our view, three potential ways to understand what CGWW are in fact proposing—and we’d all do well to have more clarity from them on which of the following is their endgame.

Most narrowly, CGWW are concerned that the AUMF is silently being expanded to encompass groups it was never meant to, in a manner that is both democratically unaccountable and potentially unlawful. Thus, as we already flagged, the most positive aspect of their proposal is its call for greater transparency and public reporting as the Administration claims the authority to use military force against groups with less and less of a connection to al Qaeda and/or the September 11 attacks. Thus, if the upshot of the CGWW proposal is simply to introduce the requirements of oversight, public reporting, and other accountability measures for actions taken pursuant to (1) the current AUMF; (2) Article II authorities; or (3) in the event that the situation arises, any future and limited AUMF tied to a specific, grave and ongoing threat posed by a group akin to al Qaeda after 9/11, we would wholeheartedly agree—and happily sign on.

Alternatively, as we explained in our initial post, another possible purpose of the CGWW proposal is to provide legal authority for long-term detention without charge for members of groups that don’t currently fall within the ambit of the AUMF. Thus, in their initial paper, CGWW’s explanation for why Article II self-defense authorities are insufficient rests in large part on the fact that “the [P]resident faces significant legal hurdles to detaining terrorism suspects over the longer term under Article II.” But in his response this morning, Jack expressly disavows this reading—claiming that CGWW “did not wade in to the thorny issue of whether new detentions are necessary, or when detention as opposed to targeting is preferred, or the possible relationship between the unavailability of detention and enhanced rates of targeting, and how that tradeoff should be managed.” But if it is not CGWW’s view that new detention authority is necessary, then we fail to see what their proposal accomplishes that wouldn’t already follow from the President’s existing authorities under Article II. We had thought that the focus on detention authority was the best way to explain how CGWW are not arguing for an expansion of the President’s authority to use military force as a first resort—but are arguing for more than just codification of the status quo; Jack’s response asserts that we were wrong.

If so, then our basic question remains: what authorities do CGWW seek that either (1) don’t already exist under the AUMF and Article II; or (2) couldn’t easily be provided on a case-by-case basis if and when Congress determines that a group outside the ambit of the AUMF poses the kind of threat that justifies more-than-just-defensive uses of military force?

The only remaining answer is the one we warned about in our initial post—that what CGWW are truly seeking is a much more expansive use-of-force regime than that which currently exists. To illustrate this point, consider an exchange that we had with Bobby at today’s Fordham conference:

In response to these same questions, Bobby invoked the Benghazi attacks as one example that would justify listing a new terrorist group as being subject to the use of military force under CGWW’s proposed framework statute. We certainly agree that the United States could—and, if it had the intelligence, certainly should—have taken self-defense action in the face of the pending attack in Benghazi. The United States could also have responded, in a proportionate way, after the attack, if it had reason to believe that future attacks were forthcoming.

And yet, Bobby’s suggestion was that the Benghazi attack should have also authorized the President to list the responsible groups—and to therefore subject its members not just to immediate defensive attacks, but to future preemptive attacks and/or long-term detention without charge. Step back and think about this view: Such an understanding would constitute an extraordinary and enormous expansion of the use of force. It suggests that any terrorist attack, even a one-off attack, would justify the application of a law-of-war paradigm to all members of such a group. This approach is contrary to international law, was rejected by Congress even in the immediate aftermath of 9/11, and would almost certainly be (rightly) condemned by our allies. When we referred in our initial post to the “militarization of counterterrorism,” this is exactly what we feared.

Not to worry, CGWW suggest; Congress “might consider statutory targeting guidance beyond mere authorization of force” that would limit the government’s authority to target individuals based merely on membership in such a listed group. But even if that were realistic (color us skeptical), CGWW’s narrowing criteria presumably allow the use of lethal force beyond what is permitted under the international law of self-defense. To beat a dead horse, if they didn’t (that is, if the targeting criteria merely tracked the law of self-defense), CGWW’s proposal wouldn’t be necessary.

Ultimately, we return to the main point of our original response: If and when another group poses the type of threat that al Qaeda posed before or after September 11 justifying the use of force as a first resort against members of that group, the Executive can—and will—go to Congress to obtain authorization to use force, just as it did after 9/11. In the interim, if that group (or some of its members) presents an active, significant, and imminent threat that cannot be addressed through alternative means, the Executive can engage in proportionate self-defense against that group and/or the relevant actors.

Short of these authorities, it is also worth emphasizing the government’s sweeping authority to subject terrorism suspects to criminal prosecution, regardless of their connection to any specific group, so long as they knowingly provide material support (broadly defined) to a designated terrorist group. It is our view that, as was the case before and after 9/11 with respect to all terrorist threats not linked to al Qaeda, the primary response to such threats should be law enforcement and intelligence tools.  These are tools the United States has successfully employed with all homegrown violent extremists since 9/11; with international terrorists not connected to the conflict with al Qaeda; and even with a handful of international terrorists with direct al Qaeda connections.  These are tools that our allies rely upon and insist are sufficient in responding to terrorist threats overseas.  As stated in our prior post, we also should also not understate the ways in which our counterterrorism laws and intelligence capacities have evolved to better deal with such threats over the past decade.

The stakes of this debate are high. As we explained in our initial response, we share CGWW’s views about the increasing obsolescence of the AUMF (which we celebrate). But having now reached what we hope is the beginning of the end of the conflict Congress authorized nearly twelve years ago (to say nothing of tomorrow’s tenth anniversary of the 2002 Iraq AUMF), we aspire to a paradigm shift back toward peacetime—and not toward new wars.

At the same time, we are realistic: It is certainly possible that future circumstances might force Congress to revisit the question of whether military force should be authorized against groups that fall outside the AUMF’s ambit. Indeed, we would welcome a conversation about whether it makes sense to repeal the AUMF in favor of a narrower, AQAP-based use-of-force authorization. But absent a demonstration of a compelling need for such authority, we see no reason why Congress should (and lots of reasons why Congress shouldn’t) provide the President with a blank check to label additional groups as being enemies in an armed conflict, as opposed to common criminals.

Otherwise, as the omnipotent voice in Field of Dreams put it, “if you build it, he will come.”