More on the Administration's AUMF Strategy

By Jack Goldsmith
Thursday, May 22, 2014, 9:00 AM

A friend who is familiar with Obama administration thinking responds to my post on yesterday’s AUMF hearing:

The administration’s focus is not on ending the war, but on ensuring that future presidents don't have the latitude the AUMF provides. The focus is on restraint. And the message is not intended to be read as supporting the arrogation of presidential power.

I know this is what many inside the administration think.  But the means do not match the aims.  In fact as well as appearance, saying that Article II gives you all that the AUMF does and more is not viewed as restraint and does not in fact restrain future presidents.  I think the administration is obsessed with ensuring that future presidents do not rely on the AUMF for new detentions, at GTMO or elsewhere.  That is a perfectly legitimate aim.  But to accomplish that aim, the administration is switching to a more expansive and less cabined legal justification for targeting and killing under Article II.  They are trying to restrain detention power at the price of placing targeting power on a more expansive, unilateral Article II basis.  And the latter is what everyone is focused on.

Predictably, Congress does not appear to like this approach, which implies endless Article II war at the President’s discretion.  Our argument in a nutshell for a revised AUMF is that the process of targeting and killing terrorists who pose threats should be grounded more in more precise statutory authority and subject to a more regularized and transparent process.  I believe that those who oppose such a statute fear (a) the imprimatur of endless war, (b) the Obama administration's name on that endless war, and (c) renewed authorization of detention power.  But the targeting and killing of terrorists in many countries, as well as related actions against terrorists in many countries, is not going away.  It simply isn’t.   War, or whatever you want to call the jurisdiction that justifies targeted killing, will be with us no matter what. The President will address the threats that terrorists pose with force, and the switch to Article II as a basis for doing so will have President Obama's name on it no less than a new AUMF (and perhaps more so, since the Article II basis for endless war is the President's decision alone).  As for detention, there is no reason that a revised and narrowed AUMF need authorize detention going forward.  Congress could authorize force but make clear that force does not in this context entail a detention power.  That is, Congress can prohibit detention in its revised AUMF.  I am pretty sure the administration fears, however, that it would not be able to get from Congress a new and narrowly cabined AUMF that eliminated detention authority.

And so the administration faces the hard choice of (a) placing the Forever War on an Article II basis, with President Obama's imprimatur, that will be seen as arrogating presidential power and making the war even less cabined than it now is, or (b) trying to get from Congress some combination of revised targeting authority without new detention authority that will also have the President's name on it.  That is a tough one.   It seems to me that since the Administration has the veto power and Article II if it doesn't get the Bill it likes, the statutory approach is worth trying.  But I predict it will continue to pursue the course of least resistance, which is unilaterally switching from the AUMF to Article II -- especially since, I suspect, many in the administration like the extra flexibility in targeting that Article II provides.