Detention & Guantanamo

Hoover Task Force Short Essays on "Second Term Challenges at the Intersection of National Security and Law"

By Benjamin Wittes
Wednesday, January 23, 2013, 10:47 PM

The Hoover Institution Task Force on National Security and Law is releasing a series of short essays entitled "Second Term Challenges at the Intersection of National Security and Law." The task force, of which I and several other Lawfare contributors are members, is headed by Hoover's Peter Berkowitz, who describes the project as follows:

As Barack Obama begins his second term as president of the United States, the nation confronts a range of formidable challenges at the intersection of national security and law.  Some challenges involve the inadequacies of both the existing criminal law and the contemporary laws of war to deal with transnational terrorists who are neither criminals nor lawful combatants but partake of aspects of both.  Some involve the development of technologies of mass empowerment and mass destruction.  Some involve the proper interpretation of the Constitution and the best division of national security responsibilities among the legislative, executive, and judicial branches of the federal government, and the departments and entities within them.  Some involve understanding the ideas that motivate our adversaries.  Some involve the application of the international laws of war to complex conflicts abroad.  Some involve the changing character of the nation-state.  And some challenges involve several or all of these aspects at the same time.

In the essays that follow, members of the Hoover Institution’s Task Force on National Security and Law address several of the challenges with which the Obama administration and administrations before it have wrestled and with which the Obama administration and administrations that follow it will continue to grapple.

The first of the essays, released today, is by Jack and is entitled, "What to Do About Growing Extra-AUMF Threats?" It opens:

The legal foundation for the post-9/11 “war on terrorism”—the September 2001 Authorization for Use of Military Force (AUMF)—is quickly becoming obsolete.  A major challenge for the second-term Obama administration is whether and how to supplement or replace the AUMF.

The AUMF authorizes the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . . .”  The authorization of “force” in the AUMF is the basis for detention and targeting of al Qaeda and Taliban members.  In addition, both the Bush and Obama administrations, along with some courts, have construed the AUMF to extend to co-belligerents.  This legal construction is the basis for detention and targeting of forces “associated with” al Qaeda, such as al Shabbab and al Qaeda in the Arabian Peninsula.

This framework is becoming obsolete because some newly threatening Islamist terrorist groups do not plausibly fall within the AUMF.  Many of these groups—such as al Qaeda in the Islamic Maghreb (in Northern Africa) or the al-Nusra Front (a rebel group in Syria associated with al Qaeda in Iraq)—have no direct links to al Qaeda and unclear ones to al Qaeda affiliates.  Regardless of where the precise outer boundaries of the AUMF lie, there is a growing gap between the threats posed by Islamist terrorist groups and the president’s legal authority to meet the threats under the AUMF.

What can the Obama administration do to close this gap?

We will link to all of the essays---including my own, Matt's, Ken's, and other interesting contributions---as Hoover releases them.