Detention: Law of
After the AUMF: A Response to Chesney, Goldsmith, Waxman, and Wittes
In the very first days after the horrific attacks of September 11, 2001, the Bush Administration asked Congress for broad statutory authorization to use military force to “deter and pre-empt any future acts of terrorism or aggression against the United States”—that is to say, for statutory authorization of what that Administration called a “Global War on Terrorism.” But even then, when our uncertainty, fear, and pain were felt most acutely, Congress pushed back: It refused to give the Administration such an open-ended authority to use military force against all possible future terrorist threats. Instead, Congress in the September 18, 2001 Authorization for Use of Military Force (“AUMF”) gave the President the authority to use all necessary and appropriate force against those groups and nations who were most directly responsible for 9/11—“those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Thus, and contrary to both the wishes of the Executive Branch and the depictions of many critics, Congress provided a limited force authorization specifically focused against 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.
Now, here we are, nearly twelve years on, and as former DOD General Counsel Jeh Johnson explained in a speech last fall, and as Rosa Brooks wrote last week in a thoughtful Foreign Policy essay, we are getting closer to the day when the United States will no longer be engaged in an armed conflict with the Taliban, or with the “core” of al Qaeda. And at some point—in the not-too-distant future, we hope—the end of the conflict with any ostensible co-belligerents of al Qaeda will also be upon us.
One would think, then, that this is hardly a propitious time to begin discussing an expansion of statutory authorities to use military force.
And yet, such an expansion lies at the heart of a proposal put forth in a Hoover Institution working paper released in February and co-authored by our friends Bobby Chesney, Jack Goldsmith, Matt Waxman, and Ben Wittes. In their paper, Bobby, Jack, Matt, and Ben (who we will refer to for simplicity’s sake as “CGWW”) argue for a new statutory framework for “next-generation terrorist threats.” Such an approach is justified, they claim, because the AUMF is becoming increasingly obsolete as we get further away from September 11—and as the threats the U.S. faces from international terrorism encompass a range of groups with increasingly less of a clear connection to al Qaeda and/or the September 11 attacks.
As we explain in the post that follows, we believe that the CGWW proposal is, at best, a solution in search of a problem that does not exist. More than that, though, we fear that the sweeping and preemptive militarization of counterterrorism for which they argue is not just unnecessary on current facts, but also deeply misguided—and likely counterproductive—as a matter of policy and prudence. To put it simply, we believe that the AUMF, coupled with existing criminal laws, the President’s power to defend the country from imminent future attacks, and a host of related tools that the Executive regularly employs, provides the government with more than sufficient authorities at present—and that nothing will stop this or any future President from returning to Congress if and when a specific case arises for which new statutory authorization to use military force is necessary.
I. THE CGWW PROPOSAL AND WHY IT IS UNNECESSARY
The CGWW proposal begins from two factual premises with which we wholeheartedly agree: “the conflict [authorized by the AUMF] is growing less salient as U.S. and allied actions degrade the core of al Qaeda and the U.S. military draws down its forces fighting the Taliban in Afghanistan,” and “newer terrorist groups that threaten the United States and its interests are emerging around the globe.” From this they derive their principal animating concern: “[W]e are reaching the end point of statutory authority for the president to meet terrorist threats.”
That sounds fairly ominous: Indeed, if it were in fact the case that, all of a sudden, the Executive Branch lacked legal authority to deal with newly emerging terrorist threats to the United States, we would be fully on board with their call for new authorities. But the premises of CGWW’s argument are fundamentally mistaken.
First, it is not clear that any splinter terrorist groups pose the kind of threat to the United States that justify a congressional authorization of military force—or the application of law-of-war tools. In the recently released Intelligence Community Worldwide Threat Assessment, only al Qaeda in the Arabian Peninsula (“AQAP”) is described as having the intent and capacity to launch attacks on the U.S. homeland. But as CGWW themselves acknowledge, AQAP is one group that appears to fall neatly within the definition of “associated forces” that both the Obama Administration and Congress (in the FY2012 National Defense Authorization Act) have deemed covered by the AUMF, i.e., “an organized, armed group that has entered the fight alongside al-Qaeda” and that is a “co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners.” Thus, the threat posed by AQAP appears to be squarely covered by the AUMF as currently interpreted, and it is not clear why any new authorities are needed for them.
Second, as CGWW acknowledge, Article II authorities should provide the President with the authority to take immediate—and, where necessary, lethal—action with respect to any member or leader of any other such splinter groups that pose an imminent and significant threat that cannot feasibly be addressed through other means. Thus, any actual threat can be appropriately dealt with pursuant to the President’s Article II powers, without resorting to what amounts to an open-ended and permanent declaration of armed conflict. [Contra footnote 5 of CGWW, a mere reaffirmation of the President's Article II authorities is not what the Bush Administration had initially sought in its proposal for an open-ended AUMF.]
Third, claims to the contrary notwithstanding, law enforcement tools are—and have proven to be—effective in dealing with most terrorist threats. Here, CGWW discount or ignore the ways in which counterterrorism laws and capabilities have evolved over the past decade. Not only is our capacity to track and monitor terrorism suspects significantly greater, but our substantive criminal laws also have evolved to respond to the changing nature of the threat. Material support statutes, for example, which have been interpreted broadly, have covered overseas conduct since October 2001; district courts have recognized a broadened “public safety” exception to Miranda to allow for the limited introduction into evidence of unwarned statements; and an increasing cohort of judges and civilian prosecutors have successfully navigated the handling of classified information. Over the past decade, our Article III courts have successfully prosecuted and convicted hundreds of terrorism defendants, generally with little fanfare or controversy—often leading to sentences of multiple decades or life. Key allies have prosecuted and convicted numerous others.
Despite these successes of our Article III courts, it seems that a key—and possibly principal—objective of the CGWW proposal is to provide authority to this and future presidents to detain terrorism suspects without charge. Indeed, as they candidly note in explaining why they believe the President’s existing authorities aren’t sufficient for groups not covered by the AUMF, “It is also not clear whether the president’s Article II authority includes detention powers.”
Thus, CGWW appear to believe that long-term, law-of-war detention authority is necessary to deal with the threat posed by emerging terrorists groups who fall outside the AUMF. But they fail to explain why this is needed; how such detentions would not re-trigger the same international approbation and condemnation that has long accompanied the detentions at Guantánamo; where the detainees would be held; or how they would protect against blowback. Moreover, to the extent that their primary concerns stem from the threats in the Sahel and Somalia (see, for example, CGWW at 5), the difficulties posed by trying to capture such suspects apply regardless of whether the goal is law-of-war detention or criminal prosecution.
Fourth, were a particular group to pose the type of significant and strategic threat that the criminal law, coupled with Article II authorities, could not adequately address and that triggered the laws of war (for example, if the United States were ever to face a threat from a splinter terrorist group approaching that which al Qaeda posed in September 2001), neither Congress nor the Executive would be remotely powerless. Instead, just as it did after 9/11, Congress could always pass a new AUMF tied specifically to the threat posed by that group—and, where necessary, provide the long-term detention authority for enemy forces in armed conflict.
CGWW nonetheless reject this approach and instead advocate for what amounts to an open-ended delegation of the authorization of military force to the President: “Congress sets forth general statutory criteria for presidential uses of force against new terrorist threats but requires the executive branch, through a robust administrative process, to identify particular groups that are covered by that authorization of force.” Modeled on the existing process for State Department administrative designation of Foreign Terrorist Organizations (FTOs), the CGWW proposal is for Congress to enact a new blanket framework statute authorizing the use of military force against as-yet-undetermined future terrorist organizations, and to delegate to the Executive Branch the authority to designate those organizations against which such force may be used if and when the time comes.
At its core, CGWW are proposing a scenario wherein members of an expanding number of terrorist groups can, as a matter of law, be targeted as a matter of first resort and subjected to indefinite detention without charge, based solely on an (effectively unreviewable) administrative determination by the Executive Branch. To their credit, CGWW suggest limiting the categories of groups and individuals that can be targeted, adding new accountability mechanisms, and including sunset provisions. But if recent experience is any indication (see, e.g., the FISA Amendments Act), sunsets have hardly prompted Congress to revisit or meaningfully revise the underlying counterterrorism authority when it’s time to reauthorize the program. And accountability measures provide little reassurance if the category of permitted uses of military force (including subjecting individuals to detention without charge) is excessively broad; providing transparency for bad policies does not of itself make them good policies. Finally, if the targeting limits they propose were adopted (i.e., tying the criteria to international self-defense [CGWW at 10]), the effect would be to authorize little more than that which is currently available under Article II.
This last point again leads to the sense that their primary objective has more to do with the creation of a new, long-term administrative detention regime than with any other uses of force. And we return to our view that such detention is an extraordinary power that has traditionally been available only in the context of an ongoing armed conflict—and that Congress can and should only authorize the use of such tools against such groups (including the power to detain those members who are subject to detention) if and when an appropriate case is presented.
CGWW object to this possibility, though, because “Congress probably cannot or will not, on a continuing basis, authorize force quickly or robustly enough to meet the threat, which is ever-morphing in terms of group identity and in terms of geographic locale.” And yet, they provide no substantiation whatsoever to explain why, when such a case is presented (as it was after September 11), Congress either could not or would not provide the necessary authority—and why, in the interim, the President’s Article II authorities, criminal laws, and multiple other counterterrorism practices wouldn’t be sufficient. Until and unless Congress is besieged with requests to authorize the use of military force against a range of terrorist groups, each of which presents a threat akin to that posed by al Qaeda a decade ago, and fails to act on them, it is difficult to see why what CGWW propose would ever be necessary.
Indeed, CGWW candidly admit that they (like us) lack access to the relevant intelligence on the existence of and scope of any extra-AUMF threats. They thus concede that they have built their entire proposal around the “assumption” that “some such circumstances do exist or will arise.” Yet, the Executive Branch (which, unlike us and CGWW, does have access to the relevant intelligence data), has not sought any such expansion of its authority in any specific case, let alone a wholesale delegation of the authority to use military force of the type they propose.
II. WHY THE CGWW PROPOSAL IS UNWISE
In addition to being unnecessary, we also believe that the CGWW proposal is decidedly unwise, for a host of distinct but related reasons.
First, the CGWW proposal undercuts the critical distinction our law and policy recognize between wartime and peacetime. As Jeh Johnson so eloquently reiterated just a few months ago, war should “be regarded as a finite, extraordinary and unnatural state of affairs” that “violates the natural order of things,” and “[p]eace must be regarded as the norm toward which the human race continually strives.” This is more than a moral imperative. It also matters with regard to the government’s authority over the person—whether it can undertake the drastic and dramatic steps of killing or detaining without criminal charge, or whether it is bound by the rules governing our criminal justice system. We hardly need to rehash the myriad differences between the government’s burden in a use-of-force context and its burden in a civilian courtroom.
What CGWW propose is, in effect, a paradigm shift: from defensive uses of force in response to an imminent terrorist threat to offensive uses of force to preempt such threats from even arising. The legality of such preemptive force under international law is highly questionable—and, again, for good reason. The international community learned all too well during the twentieth century just how destabilizing offensive uses of force could be to the world order, to say nothing of the very real consequences in terms of human lives.
To be fair, in a subsequent Lawfare post, Matt disavowed such intent, asserting that they call for “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.” But one of two things is true: Either Matt’s characterization is correct, in which case, as we noted above, the sole accomplishment of the CGWW proposal vis-à-vis existing authority is the creation of a broad, new administrative detention regime (the concerns with which we’ve already documented), or it isn’t, in which case it would be a dramatic—and unprecedented—inversion of the accepted notion that war is an extraordinary condition that should be engaged in only where every other alternative has been exhausted.
Second, on top of the moral and legal objections that a preemptive force paradigm would engender, it also runs the risk of undermining our principal counterterrorism goal—i.e., protecting this and future generations of Americans from the threat of international terrorism. This is so for any number of reasons, the most obvious of which are the risk of blowback as Dennis Blair and Gen. Stanley McChrystal recently warned with respect to the use of drones; international approbation and reduced counterterrorism cooperation; and stronger claims on the part of other actors to the same authorities as against the United States or its interests as those which we would claim for ourselves. (Imagine these authorities in the hands of the Russians or Chinese, for example.) This is just the tip of the iceberg, though…
Third, and related to the first two, it would be incredibly difficult to scale back the authorities for which CGWW are arguing once they are delegated. Practically, it is all-but impossible to imagine the circumstances in which a future President or a future Congress (to say nothing of both) would support the elimination of this regime in its entirety, or even the “de-listing” of groups that are designated under the quasi-FTO designation process. This point is hardly speculative; see, e.g., how hard it has been to close Guantánamo notwithstanding the existence, at least for a small time, of bipartisan support to do so. Justice Cardozo long-ago warned of “the tendency of a principle to expand itself to the limit of its logic.” It’s hard to see why the same wouldn’t happen, here.
* * *
We support the authority of the U.S. government to use military force in appropriate circumstances. But we also deeply believe that such force should be the last, rather than first, option—for practical reasons, for policy reasons, and for legal reasons. If and when the time comes that another non-state actor presents a threat to our national security that can’t adequately be remedied through existing authorities, we will stand by those who urge Congress to pass a new AUMF to handle such a new threat. But nothing in the CGWW proposal, in the public record, or in anything we hear from our friends within and without the government suggests that such a day is approaching.
- Detention: Law of,
- Targeted Killing: Drones,
- International Law: LOAC: Detention,
- Targeted Killing,
- International Law,
- Domestic Terrorism,
- Terrorism Trials: Civilian Court,
- Detention & Guantanamo,
- International Law: LOAC,
- AUMF: Legislative Reaffirmation,
- AUMF: Scope and Reach,
- Terrorism Trials & Investigations,
- Criminal Law: Procedural,
- Criminal Law: Substantive,
- Executive Power,
- Detention: Law of: Legislative Development