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After the AUMF, III: A Surreply to Jack

By and
Tuesday, March 19, 2013 at 12:28 AM

It’s quickly becoming apparent that we and Jack appear to be talking past each other on the merits of the Chesney/Goldsmith/Waxman/Wittes (CGWW) proposal for a new framework statute for “extra-AUMF threats.” In Jack’s final response, for example, he frames “the fundamental disagreement” between us and CGWW as the fact that we “believe that when the threats covered by the AUMF are eliminated, then we can have ‘a paradigm shift back toward peacetime.’” That certainly is what we think, until and unless Congress determines that another case has presented itself in which our “peacetime” authorities—a combination of, among other things, ordinary law enforcement functions, appropriate border controls, counterterrorism cooperation, and settled powers of self-defense—are inadequate to quell the threat posed by a specific terrorist group.

That is where our fundamental disagreement with CGWW arises: We believe that a case-specific, AUMF-like use-of-force authorization would be the appropriate response if and when such a day ever comes; CGWW’s framework statute commits such a momentous determination in the first and last instance to the unreviewable internal processes of the Executive Branch. It thereby lays the grounding for an ever-expanding list of groups with which the United States is at war. Put another way, our aspiration toward peacetime leads us to prefer a regime in which Congress authorizes the use of force as a last resort and on a case-specific basis. CGWW’s proposal would turn that aspiration on its head.

We also want to clarify what we thought would be a rather obvious point from both of our posts (to say nothing of everything else either of us have ever written): We do not support or otherwise prefer an “arc of executive unilateralism,” as Jack suggests. In fact, we are more than a little surprised that anyone who read either of our previous posts on this issue could think otherwise. As we have stated repeatedly, the unilateralism we accept is in a form that we are sure CGWW endorse as well: that the President, pursuant to his Article II powers, is permitted (and expected) to exercise the proportionate use of force in response to an actual, significant, and imminent threat. This is a settled principle of both domestic and international law—and hardly one that smacks of unaccountable executive power. As for CGWW’s argument that such exercises of self-defense should be subject to increased transparency and accountability mechanisms, it should be crystal clear from our earlier posts that we welcome and embrace this position—indeed, we argue for the adoption of such measures even in the absence of any new statutory authorities. It hardly follows that our opposition to the rest of their proposal means that we embrace every aspect of the status quo.

One final point: It bears noting that nothing in CGWW’s proposal precludes the exercise of these self-defense authorities—the “executive unilateralism” Jack appears to decry—along the lines we have outlined. Nor could it, without raising serious constitutional questions. Rather, as Jack’s most recent post makes all too clear, the entire purpose of CGWW’s proposal is to delegate to the President the power to authorize additional uses of force beyond that which would otherwise be permitted under established principles of self-defense. He thus confirms what we initially suspected: that CGWW seek an expansive new blanket authorization for the use of force (and, by implication, detention without charge) as a matter of first resort. Color us unconvinced that CGWW have remotely carried their burden in explaining why such authorizations can’t be provided by Congress on a case-by-case basis if—and only if—the facts on the ground actually warrant them.

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