Is the Administration Softening on AUMF Reaffirmation?

By Benjamin Wittes
Wednesday, October 19, 2011, 8:05 AM

I had been waiting for the video of Pentagon General Counsel Jeh Johnson's speech at the Heritage Foundation to be released to post thoughts it. But I awoke this morning to press coverage of the speech that seemed pretty consistently to miss a component of Johnson's remarks that is, in my view, real news: Johnson took a much more measured approach than has the administration at large towards the idea of updating the AUMF.

Johnson's comments on the subject came in response to the first question he was asked. Heritage's Cully Stimson--who hosted the event and, by the way, deserves a lot of credit for the non-partisan seriousness he is showing on these issues--noted that while Johnson had criticized the detainee affairs provisions of the pending NDAA bills in the speech, not all of the provisions were that bad. Cully asked what Johnson thought of House Armed Services Chairman Buck McKeon's proposal to reaffirm the AUMF.

Recall that this was a provision the administration had specifically objected to in its Statement of Administration Policy on the House NDAA language, which threatened a veto. Johnson, however, did not attack the provision. While he did not endorse it, he specifically said that he thought its goal had been misunderstood by its many critics and that he did not think it was an effort to create an endless permanent state of war but, rather, an effort to write into statute the administration's current interpretation of its authorities. The concern he expressed about the provision was that its specific language might not accomplish this but might inadvertently convey less authority to confront the enemy than does current administration interpretation of the extant AUMF. And he repeated a carefully-worded statement he had given McKeon's committee to the effect that the authorities the administration has, given the interpretations the administration has adopted of them, have been adequate to address the threats he has had occasion to evaluate--a formulation which clearly acknowledges that they may not be adequate for what is coming down the pike in the near future. What's more, as Cully noted, Johnson said not a word about the AUMF provision in the body of the speech itself, though he (rightly, in my view) blasted the detainee provisions of the bill at some length.

In other words, the speech seemed to me pretty clearly--in what Johnson talked about and what he didn't talk about--to set priorities in congressional relations on these issues that the administration has been sadly ineffective to date in setting. It signaled, without ever quite saying, that for the Pentagon, at least, the AUMF provision has a legitimate ambition behind it and that the problems with with it are ones of execution, not concept--nothing that consultation and careful draftsmanship would not fix. The problems with the detention provisions, rather, are their very purposes and aims.

UPDATE: Heritage has now made the video of the speech available. The relevant discussion occurs starting at just after the 39-minute mark.