AUMF: Legislative Reaffirmation

A New White House Signal on AUMF Reform?

By Benjamin Wittes, Robert Chesney, Jack Goldsmith, Matthew Waxman

Sunday, July 27, 2014, 1:51 PM

Josh Gerstein of Politico reports that "[a] top White House official suggested Saturday that Congress pass new legislation to support President Barack Obama's authority to act against an array of terrorist groups not clearly linked to the September 11 attacks."

Gerstein quotes White House counterterrorism czar Lisa Monaco as stating this weekend at the Aspen Security Forum: "The 2001 AUMF has provided us authority to go after terrorist actors and address the threats that they pose that fit within that definition. We are now 13, 14 years on from that and we’re seeing the emergence of other actors. ... I think there absolutely is a reason to have an authority to enable us to take the fight to these evolving terrorists that we’ve talked about." Monaco's statement, if we're understanding it correctly, seems to represent a shift from the White House's prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.

The commentary that follows in Gerstein's article plays into a narrative that describes this issue as a stark choice between perpetual and expanded war or a complete end to it. That's a poor way to think about it.

As we have been arguing for some time, there are responsible ways to pair new force authorities with substantive and procedural constraints that take account of the past decade's experience and realistic assessments of current and future threats. There should be serious debate about how to structure and refine such authorities and constraints.

Here is video of Monaco's speech:

Topics:

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

@bobbychesney

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

@jacklgoldsmith

Matthew Waxman is a law professor at Columbia Law School, where he co-chairs the Program on Law and National Security. He is also co-chair of the Cybersecurity Center at Columbia University’s Data Science Institute, as well as Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter

@mattwaxman1

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