Keith Gerver on Yesterday's Senate Foreign Relations Committee Hearing

By Benjamin Wittes
Thursday, March 21, 2013, 9:43 PM

Keith Gerver writes in with the following account of yesterday's Senate Foreign Relations Committee hearing, which seems to have tracked closely some recent arguments on Lawfare:

The recent debate between Bobby, Jack, Ben, and Matt, on the one hand, and Steve and Jennifer Daskal, on the other, over whether Congress should consider a new Authorization for Use of Military Force (“AUMF”)—and what such an authorization should look like—spilled out into a hearing room in the Dirksen Senate Office Building yesterday afternoon during the Senate Foreign Relations Committee’s hearing on “Counterterrorism Policies and Priorities: Addressing the Evolving Threat.” The hearing, as Ben noted earlier, featured testimony from former Congresswoman Jane Harman, former director of the National Counterterrorism Center Michael Leiter, and former Assistant to the President for Homeland Security and Counterterrorism Ken Wainstein.

Though Chairman Robert Menendez focused his questions on what kinds of “softer,” non-kinetic policies the United States should pursue to stem the flow of impressionable, poorly educated, or economically disadvantaged young Muslim men into the arms of Al Qaeda and other terrorist groups, Senator Bob Corker sought the panelists’ views on the continued viability of the September 18, 2001 AUMF, which he believes needs to be updated.  The panelists were in agreement that a new framework for the use of force was necessary to address the changing terrorist threat landscape, but they differed in their approaches.  Interestingly, their differences mapped closely those of the two sides of the AUMF debate that has taken place here on Lawfare over the past week.

Indeed, Leiter described the current AUMF as “too broad, too narrow, and too vague.”  Leiter explained that the AUMF is, first, too broad because many of those in Congress who passed the authorization likely did not believe it would still be in force today, twelve years later. Second, it is too narrow given that it has taken considerable shoehorning to fit various groups and individuals who pose a clear and imminent threat to the United States into the language of the AUMF. And third, it is too vague because it is difficult to see how the language of the AUMF applies to current terrorist threats. Leiter explicitly commended the Chesney-Goldsmith-Waxman-Wittes report as a good theoretical model for thinking about how the AUMF should be changed.  He advocated a process similar to how the State Department designates terrorist groups and recommended that any new authorization for use of force include a procedure whereby the Executive Branch nominates a terrorist individual or group, approves that nomination internally, and gives Congress the opportunity to review that nomination.

Wainstein agreed that the current AUMF does not adequately address current and future terrorist threats. He stated that he subscribed to the idea of the Executive Branch having a list to which groups can be added as they become threats, as such a process would provide the flexibility essential to counterterrorism operations.  Indeed, Wainstein emphasized that in assessing any proposal with respect to a new AUMF, Congress should not restrict the Executive Branch’s flexibility in conducting counterterrorism operations.  Wainstein also noted that Congressional action in passing a new authorization for use of military force would add much needed political legitimacy to the Executive Branch’s counterterrorism efforts—a view that echoed Jack’s position on the Administration’s need to enlist the aid of Congress in conducting targeted killing operations.

Harman, like Steve and Jennifer, voiced caution in having Congress adopt what she described as a “blanket authorization.” While she agreed that a new legal framework more attuned to the current threats faced by the United States is needed, she emphasized that Congress’s role should be “to consider carefully different circumstances around different assertions of the use of force”; that is, congressional authorization for the use of force should occur on a more case-by-case basis. Harman made clear, though, that Congress must play a more assertive role in oversight and legislating than it has over the past 12 years.

If yesterday’s hearing is any indication, Congress appears ready to begin engaging the debate over whether a new AUMF is needed.