Consensus on First Steps For AUMF Reform?

By Jack Goldsmith
Tuesday, June 4, 2013, 2:06 PM

One point of common ground in the debate at Lawfare over the continued viability of the AUMF (at least among Bobby and Matthew, Jen and Steve, and me – not sure about Ben) is that Congress should engage the Executive branch more on the application of the current AUMF.  In particular, despite our different perspectives on what to do with extra-AUMF threats, we appear to agree that the groups and individuals covered by the extant AUMF (including those covered via the “associated forces” mechanism) should be made public, and that Congress (and in particular the armed services committees) should play a more active oversight role in both the applicability of the AUMF to new groups and with respect to particular kill/capture operations.

In the SASC AUMF hearings a few weeks ago – which made clear that the SASC was not terribly well informed about how DOD is using the AUMF – many of the members who showed up for the hearing appeared to support at least these reforms.  (Moreover, Assistant Secretary of Defense for Special Operations/Low-Intensity Conflict Michael Sheehan promised to provide the Committee with a list of groups covered by the AUMF – a good first step, and a step that belies current claims about the vigor of SASC oversight).

As Raff noted, The Hill today reports today that the HASC is moving forward on similar reforms.  In particular, it says that Representative Thornberry’s proposal for enhanced AUMF oversight (discussed here by Bobby), as well as a proposal to get more review and information about covered AUMF groups, are included  in the HASC’s version of the 2014 Defense Authorization bill.   (I have not yet studied the Chairman’s Mark of the 2014 National Defense Authorization Bill, but we will post it shortly.)  The Hill also says that there is bipartisan support for these proposals.

In his recent speech, President Obama pledged “to actively engag[e] Congress to explore . . . options for increased oversight” of the AUMF-war as part of his overall concern to put the AUMF-war on a more solid legal foundation.  The modest oversight steps emerging on Capitol Hill will be an early test of that pledge, and one that the President should easily pass.  For if these modest reforms do not meet presidential approval, then the thrust of the President’s remarks on the AUMF-war cannot be taken seriously.