In a recent Foreignpolicy.com essay, Rosa Brooks warns against some recent stirrings for a new or expanded Authorization for the Use of Military Force to deal with post-al Qaida threats. Brooks cites in that category the recent Hoover Institution Task Force on National Security and Law policy paper, A Statutory Framework for Next Generation Terrorist Threats, authored by Bobby, Jack, Ben, and me.
Brooks raises some important concerns, including that new statutory authorities to use force against terrorist threats will contribute to mission creep and a strategically unwise expansion of unilateral military action — that it will substitute poorly for, rather than generate and incorporate, sound strategic thinking about costs and benefits of military action. We share, as Brooks notes, those concerns, and that is in part why we reject proposals that simply expand the 2001 AUMF. Instead, we recommend that any new statutory framework include substantive restrictions (such as narrow targeting criteria, defined more specifically than the current AUMF and executive branch pronouncements, that hew to international self-defense law and the law of armed conflict) and institutional checks (such as mandated transparency, auditing, and periodic assessment requirements). It’s critical that any new legislative authority include such limitations and checks to address some of the past decades’ lessons. Brooks and other readers have reasonably questioned how effectively such restrictions will function, but we think they can serve as important constraints that improve policymaking.
Brooks and some other readers have raised another concern with our paper: that once Congress takes on this project, it’s likely to craft a poor and irresponsible statute. That may be true, and I emphatically agree that some possible (maybe, under current political conditions, likely) statutory outcomes would be worse than the status quo — that is, the existing AUMF plus the President’s Article II powers and other existing tools. There’s also a danger, though, that failing to consider seriously some alternatives to either the status quo or a new and broad AUMF without important limits and checks increases the likelihood of the latter (especially in the event of a major terrorist attack against U.S. interests). That’s why we welcome feedback and debate on our specific proposals as we work to refine them.