AUMF: Scope and Reach

How Not to Amend the AUMF, Duncan Hunter Edition

By Steve Vladeck
Thursday, May 1, 2014, 4:33 PM

Ashley beat me to the punch in flagging today’s news about Rep. Duncan Hunter’s plan to introduce legislation that would amend the September 2001 Authorization for the Use of Military Force (AUMF) to authorize the Obama Administration to go after those terrorists (and terrorist groups) responsible for the September 11, 2012 attacks against the U.S. compound in Benghazi, Libya. Ashley’s post focuses on why such an amendment would be inconsistent with international law, and I have little to add to her typically incisive analysis. Instead, I want to flag a different issue with the Hunter proposal: how it illuminates the central misunderstanding pervading the debate over AUMF reform.

As readers may (unfortunately) recall, there’s been a fairly heated debate over the past 15 months about whether the AUMF should be reformed to adjust for fairly seismic changes in the threats posed by al Qaeda and various of its affiliates (and if so, how), along with the impending withdrawal of combat troops from Afghanistan. On one side are folks like my colleague Jen Daskal and me, who have argued (ad nauseam) against expanding or otherwise rejiggering the AUMF until and unless the Executive Branch can demonstrate to Congress and the American public that a group not already covered by the AUMF (i.e., a group not responsible for the 9/11 attacks or for harboring those who were) poses the kind of threat to our national security that al Qaeda posed in the weeks and months before and after 9/11. Absent such a showing, we would instead favor repeal of the AUMF, at least once there are no longer active combat operations thereunder in Afghanistan. On the other side are folks like Ben, Bobby, Jack, and Matt, who have argued that Congress should generally delegate to the President the authority to identify such groups going forward now, at least in part to add more transparency to the current opaqueness surrounding exactly which groups are and are not covered by the AUMF (opaqueness that Jen and I also decry).

But the central point on which we always had common cause was that the focus of any congressional authorization should be on those groups who pose a sufficiently systemic threat to American interests such that ordinary law enforcement, intelligence, and self-defense authorities would be inadequate to quell the threat they pose. We may disagree about which groups so qualify (or which branch should be responsible for making that assessment), but we agree on the underlying purpose of such use-of-force authorizations as a matter of domestic policy, both because of the international law concerns Ashley documented in her post, and the more common sense view that military force should be about protecting the nation, not exacting its vengeance.

Here, in contrast, the gravamen of Rep. Hunter’s complaint appears to be that the AUMF can’t be used, at least according to JCS Chairman General Dempsey, to target those responsible for the Benghazi attacks insofar as there appears to be insufficient evidence linking the group believed to be responsible (Ansar al-Sharia) to al Qaeda and its closer affiliates. Thus, the Hunter legislation would apparently amend the AUMF to include Ansar al-Sharia, without any regard whatsoever to whether the group or its members continue to pose any threat to U.S. national security, let alone a threat of sufficient character to justify a forward-looking use-of-force authorization. (Presumably, such an amendment would not also address the more significant questions in this regard surrounding groups like AQAP—al Qaeda in the Arabian Peninsula.) And insofar as the apparent goal of the amendment is to punish those responsible for the attacks, there appears to be no explanation whatsoever for why existing law enforcement authorities would be inadequate, a deficiency that is all the more alarming given that we already have an example of a high-profile terrorism suspect captured in Libya and brought to the United States for civilian criminal trial.

Reasonable minds will certainly continue to disagree about the best way forward when it comes to amending / repealing / replacing the AUMF. But I hope we can all agree at a minimum that the goal of any such legislation must not be to allow the United States to use force against any terrorists who have ever harmed Americans anywhere in the world, but rather to allow the United States to use military force as a last resort against those groups who pose a threat too grave to be redressed through existing—and less politically and legally controversial—authorities.