Detention: Law of

Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture

By Jack Goldsmith
Tuesday, May 28, 2013, 8:08 AM

Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.”  Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended.  This is because, as Bobby says, the administration’s “imminent threat” constraint outside hot battlefields – which has allowed quite a lot of lethal force to be used in many nations – “is at least as restrictive as the boundaries of the self-defense model developed during the Reagan and Clinton years.”  When these factors are combined with technological innovations (drones and the like) and the global dispersion of the threat, Bobby concludes:

In short, the practical constraints on using force in self-defense have been removed, and if we find ourselves once more without a claim of armed conflict to support uses of force, we may well discover as a result that the pre-9/11 legal model is much less constraining than commonly assumed.   Indeed, one might conclude that there is nothing currently done outside of Afghanistan by way of targeting under the color of the law of armed conflict that could not be done under color of the pre-9/11 self-defense model.

Ben weighed in yesterday with some questions about Bobby’s thesis, including the extent to which Article II could cover current operations outside Afghanistan, whether the nation is comfortable with the “militarily active peace” that Bobby describes, and what kind of interstitial legislation might round out the President’s Article II authorities.

Several thoughts:

First, I agree with Bobby’s implication that we are on the road toward post-AUMF uses of military force around the globe justified entirely on the basis of self-defense and the President’s Article II powers.  Self-defensive military actions based on Article II are (I think) what Jeh Johnson was talking about when he referred to “military assets available in reserve to address continuing and imminent [extra-AUMF] terrorist threats” and what Harold Koh meant when he said “I see no proof that the U.S. lacks legal authority to defend itself against those [beyond the AUMF] . . . who pose to us a genuine and imminent threat,” and what the President probably had in mind when he said that “[o]ur systematic effort to dismantle terrorist organizations must continue” even after the AUMF-war ends.

Second, it would be an unprecedented expansion of Article II authority if the scope and scale of current military and paramilitary operations outside Afghanistan today were justified under Article II.  I agree with Bobby that these actions, considered individually, have the same form as the Article II actions under Clinton and Reagan.  But as Bobby suggests, organizational and technological innovations, and the global expansion of the threat, mean that the scope and scale of these operations are different in kind from the pre-9/11 context.  It would be quite a formalism to say that war on the scale now being waged by the USG is justified on the basis of the same power that President Clinton exercised in 1998.  Put another way: In substance it would take a different and broader conception of Article II to justify continuous war on this scale.

Third, Ben asks: “[H]ow do we feel about what we might term a militarily active peace—that is, a peace in which drone strikes and special forces operations take place regularly, a peace that is so minimally different from warfare that nobody (except Bobby) even noticed that we had transitioned from wartime to peacetime?”  As Ben implies, if Bobby is right, the Obama administration’s post-AUMF “peace” or “no more war” trope should not be taken too seriously.  It would be little more than a (domestic law) legalistic trick to say that we are not at “war” if we are regularly exercising the use of force around the globe, albeit in pinpoint fashion, just because the President would be acting in self-defense under Article II rather than pursuant to an AUMF.  We are currently engaged in numerous and manifold military and paramilitary and intelligence operations in many countries outside Afghanistan (see Mark Mazzetti’s book for a recent description).  The scale and persistence of the operations means that many of them would amount to “armed conflicts” even if they were justified as self-defense.  And with some caveats about Obama administration practice below, they should (when conducted by DOD) at a minimum trigger at least the reporting provisions (and perhaps more) under the War Powers Resolution.

Fourth, the stealth self-defensive war that Bobby describes and that I think the administration envisions in a post-AUMF world is even less bounded than the AUMF-war in this sense: force can be used wherever a threatening group meets the (slippery-at-best and auto-interpreted) “imminent threat” threshold, as long as the nation in question consents or is unwilling or unable to prevent the threat.  The Article II war, unlike the AUMF war, requires no nexus to al Qaeda or its associates.

Fifth, if it continues at anything like its current scale in a post-AUMF world, war based on Article II would be in even more need of congressional oversight and transparency than the AUMF war – especially in light the unboundedness described above, the Armed Services Committee’s apparent cluelessness about how DOD interprets its authorities today, and the Obama-era innovations of classified annexes to War Powers Resolution reports and the potential exclusion of many drone attacks from the WPR framework altogether.  The revised AUMF that Bobby, Ben, Matt, and I proposed was designed precisely to bring accountability and oversight to such an extra-AUMF war.  We have been criticized for wanting to expand the “war.”   That was not our intention, for we assumed that the “war” would continue beyond the AUMF in any event and aimed to bring more accountability and oversight to it.  Whether one likes our proposal or not, the nation must find some framework that interjects Congress into reviewing and approving the forthcoming self-defensive extra-AUMF Article II war.  (A good place to begin, and indeed a book devoted in large part to establishing a congressional legal framework to check unilateral self-defensive presidential uses of force, and excessive reliance on covert action, is Harold Koh’s The National Security Constitution.)

Sixth, between the Obama administration’s very expansive conception of “associated forces” (on display in the Armed Services Committee a few weeks ago) and its broad conception of an “imminent threat” that would justify the exercise of Article II uses of force, one can understand why the Executive branch is comfortable with its current authorities and does not want to change them, especially since the administration is allergic to military detention that a revised AUMF might (but needn’t) entail.

Seventh, and speaking of detention, the major limiting factor of an Article II self-defensive war is that long-term military detention by the USG would as a practical matter be off the table, leaving instead the combination of lethal force, criminal process, and rendition that prevailed before 9/11 and that (presumably along with proxy detention and proxy rendition) prevails now.  I understand why some people do not want the USG in the detention business, and getting Congress more involved in the President’s unilateral uses of force needn’t entail detention authority.  What I don’t get is why secret war defined by unilateral Article II lethal action, combined with criminal process, rendition, and related tactics, is preferable, or why the Article II approach is going to constrain this and future presidents more robustly than if Congress were involved in defining and reviewing presidential action, ex ante or ex post.

Eighth, perhaps I am overreacting because any post-AUMF self-defensive war would be significantly reduced in scale from the current AUMF-war, perhaps back to the pre-9/11 era scale of rare lethal action combined with criminal process, rendition, and the like.  I am pretty sure that commentators who are normally concerned about unilateral Article II power yet who support Article II-based extra-AUMF uses of force envision such force on a very small scale.  I envision something on a much broader scale because I envision a persistent threat that requires something longer-term, global, and extensive, and because I have seen no indication that JSOC’s secret global activities – whether based on the AUMF or on Article II, and whether involving drones, other forms of force, or simply a broadly conceived “preparation of the battlefield” – will wind down anytime soon.  In the end, the legitimacy of Article II self-defensive war depends on its scope and scale, and so on this important future fact rests the legitimacy of the approach we seem headed for.