My Final Response to Jennifer and Steve

By Jack Goldsmith
Monday, March 18, 2013, 8:24 PM

We address all of Jennifer and Steve’s latest arguments in our paper, and so I urge any interested reader to look for responses there.  I will limit myself here to one point.  Jennifer and Steve believe that when the threats covered by the AUMF are eliminated, then we can have “a paradigm shift back toward peacetime.”  This is the fundamental disagreement.  It is an issue that time will sort out, namely: whether “peacetime” authorities suffice to meet the terrorist threat.  If Jennifer and Steve are right about this premise, then of course there is no need for statutory authorization against new threats.  We believe they are wrong about this premise (and it seems to be belied by, among other things, rising budgets for JSOC and drones, the new base in Niger, the administration’s institutionalization of the drone “playbook,” its exploration of how to extend the AUMF to “associates of associates,” and more).  If “peacetime” authorities do not suffice, our proposal is far superior on democratic accountability and related legitimacy grounds to the current arc of executive unilateralism that they prefer.