Wednesday’s AUMF hearing underscored a point that I develop at some length in my paper Postwar: repeal of the AUMF would not require, as a legal matter, that the government forgo the use of lethal force in the counterterrorism setting nearly so much as many assume. Why not? Because this administration, like many before it, believes that Article II of the Constitution confers unilateral authority to use force in a broad range of circumstances involving defense against groups that pose a continuous threat of violence against Americans. Put another way: repeal of the AUMF undoubtedly would have some form of constraining impact on the political and diplomatic fronts, but not so from a domestic law perspective.
Bearing this in mind, is there anything we currently do in the targeting realm that could not be done, legally speaking, without the AUMF? Senators asked this question repeatedly (seriously, they must have asked it a dozen times total) and neither DOD General Counsel Stephon Preston nor State Department Principle Deputy Legal Advisor Mary Macleod were willing to say that there is. Indeed, both were unabashed in emphasizing the fallback authority Article II provides, so long as the government deems the target to be sufficiently linked to a continuing threat. Somewhat to my surprise, this appeared to shock most if not all the committee members in attendance. It certainly contributed to the manifest frustration many of the senators expressed.
As for the rest of the hearing? If you want a blow-by-blow account, go to my twitter feed (@bobbychesney) and scroll through (I live-tweeted most of the hearing). Meanwhile, a few additional topics worth highlighting here:
Repealing the 2002 Iraq AUMF – The government witnesses broke some news, I think, when they stated that the Obama administration now affirmatively supports repeal of the Iraq AUMF from 2002.
"Refining" the 2001 AUMF...or not? - The administration’s view on the 2001 al Qaeda AUMF remains as stated in the President’s 2013 speech on the subject: it should be “refined,” and one day it should be repealed. The government witnesses made clear that today is not the right day for repeal. The interesting question, then, is what it might mean to “refine” the AUMF in the interim. No light was shed there; the witnesses were not authorized to propose anything, and senators on both side of the aisle hammered the administration for failing to reach out to Congress with a specific reform proposal (or even to open a dialogue on the subject) despite the fact that in his 2013 speech the President said he planned to work with Congress on this subject.
Associated forces/Scope of the AUMF – Several senators asked which entities are thought by the government to be within the scope of the AUMF, aside from the previously-acknowledged determination that AQAP is covered. The witnesses declined to answer outside a classified setting, not surprisingly.