Executive Power

A Question for Ben

By Steve Vladeck, Jennifer Daskal
Wednesday, March 20, 2013, 10:18 AM

Ben writes that it is the “political reality” that “any president is going to feel obliged to maintain counterterrorism on offense,” i.e., counterterrorism through military means, “and Congress—whining, carping, complaining all the way both that the president is being too aggressive and that he is not being aggressive enough—will go along with it, indeed, will insist upon it.” Furthermore, Ben says, “the question before us as we contemplate the future of the AUMF is not one of continued war versus a return to peace. The question, rather, is whether you want the contours of this continuing armed conflict to be defined by the Executive Branch acting alone, or whether you want it defined by some joint action of the Executive Branch and Congress. Even recognizing that Congress may not play its role optimally, I am in the latter camp.”

Call us naïve, but we do think that that, with the drawdown in Afghanistan and the decimation of al Qaeda's core, we can—and should—increasingly rely on a combination of law enforcement, counter-terrorrism cooperation, and other tools to address terrorist threats, just as we have done since September 11 with respect to numerous instances of international terrorism and all cases of home-grown violent extremism; just as our key allies insist is the proper approach; and just as the warnings of folks like Dennis Blair and Gen. Stanley McChrystal suggest may be a better way to enhance our security going forward.

That said, we are not the bumbling pacifists that Ben paints us as (really, Ben? A Rand Paul presidency?). Our key point is that if a group poses the type of sustained and organized threat that justifies the declaration of an armed conflict, and if the political branches believe that the President needs more counterterrorism authorities than those provided by the AUMF, the criminal law, and the President’s self-defense powers to address such a threat, Congress should, for a host of reasons, make such a determination on an as-needed, case-specific basis. And we would fully support such an authorization, if justified by the facts.

Thus, our question to Ben (and to Bobby, Jack, and Matt): Why, exactly, are you so convinced that that’s unrealistic, and that we’d be better off with Congress abandoning the field and delegating such a momentous determination to this—or any future—President? And how does this square with your—in our opinion, correct—view of the “useful role” Congress can play in this field and the concerns we share about the Executive acting alone? That, we dare say, is the real question.