Islamic State

On Ryan Goodman's Hopeful Take on Ending the Forever War (Or: Why Legal Debates About the 2001 AUMF Don’t Affect National Security Reality)

By Jack Goldsmith
Thursday, October 9, 2014, 3:14 PM

A few responses to Ryan Goodman's reality-defying take on my claim that the Obama administration’s idea of ending the “Forever War” is dead:

*       Legal rationales debated by law professors will have zero influence on the duration of the “Forever War.”  The actions of the Islamist terrorists, and our success in defeating them, will determine that.  Recent events suggest that we are not close to victory.

*      Ryan and I are not experts on how serious the threat is, or on how long it will take us to defeat it.  But the people who are expert say it will take a very long time.  Two years ago Greg Miller reported in the WP (my emphasis):

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.  . . . Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years.  Among senior Obama administration officials, there is a broad consensus that such operations are likely to be extended at least another decade. Given the way al-Qaeda continues to metastasize, some officials said no clear end is in sight.

This analysis came before the rise of the Islamic State as a momentous threat.  So did Assistant Secretary of Defense Michael Sheehan’s statement last year that the war on terrorism would last “at least 10 to 20 years.”  Then came the Islamic State.  President Obama said in his September 10 speech that it would “take time to eradicate a cancer like ISIL.”  He did not say how much time, but his former CIA Director and Defense Secretary did.  “I think we’re looking at kind of a 30-year war,” said Leon Panetta.  Another former Obama administration CIA Director, David Petraeus, says “[w]e’re talking about years, many years in the case of [the Islamic jihadists in] Syria.”  Similarly, former Secretary of State Hillary Clinton said earlier this week that the United States and the Islamic State were in a “long-term struggle.”  So the people with true expertise, people who serve or served in the highest positions in the national security establishment, think the struggle with the Islamic State will go on for a very long time.  (See Glenn Greenwald’s piece, from which I got some of these quotes, for more.)

*     A lot of the debate about the “Forever War” has been about what to do with the 2001 AUMF.  The President and his subordinates said until recently that they hoped to narrow and then repeal it.  But then, in response to the rise of the Islamic State, the President stretched the 2001 AUMF significantly to extend it to the Islamic State.  And then Harold Koh, a proponent for ending the Forever War, endorsed the President’s interpretation.  These developments, underscored by the reality of a very lengthy conflict, mark the end of any realistic ambition to end the Forever War.

*      Ryan says that the Obama administration's expansion of the AUMF to include the Islamic State has "limiting principles."  The administration said its previous interpretation of the AUMF was limited and would not be extended under any circumstances -- until it changed its mind and extended it.  Limiting principles on the new AUMF interpretation are hard to fathom, since we don't have an official legal explanation of that interpretation.  But I wouldn't be optimistic about any such principles.  Since the President unilaterally interprets the 2001 AUMF, and since we don't know what new threats may appear, or how the Islamic State might morph, we cannot know how the AUMF may be extended in the future. 

    There is sometimes confusion on what ending the Forever War means.  Ryan seems to think it will end once we repeal the 2001 AUMF.  Harold Koh speaks like this as well.  I don’t see it that way.  Congress could repeal the 2001 AUMF tomorrow and replace it with something else, or with nothing at all, leaving the matter to the President’s inherent Article II powers (which Bobby has argued suffice).  That course of action would not end the Forever War.  Or, putting the point another way, if repealing the AUMF by itself ends the Forever War, then the war will end in a way that matters only to law professors. Whatever happens to the 2001 AUMF, the United States is going to continue to use aggressive force in many countries to degrade and try to destroy al Qaeda, associated forces, the Islamic State, and other threatening terrorist organizations around the globe.  That is a piece of national security reality that the Obama administration understands and that legal debates will not touch.

*      Given the reality of a persistent, long-term, ever-morphing Islamic terrorist threat, what is the best legal foundation to fight that threat?  A lot of us have been debating that question, and it is an important question.  I have made two suggestions.  First, I proposed with some Lawfare colleagues a statutory authorization that would replace the unilateral (and secretive) Executive branch expansion of the AUMF to new groups with an authorization that establishes regularity, transparency, rigor, and substantive limits.  And I also argued that Congress should specifically authorize the conflict against the Islamic State, again with limits.  Because my foundational preference is for congressional participation and contemporary authorization, I would be happy with either approach.  I ultimately prefer the former because I do not think Congress has the capacity to authorize force on a threat-by-threat basis against the Islamic State and what Leon Panetta says are the “emerging threats in Nigeria, Somalia, Yemen, Libya and elsewhere” that the United States will need to address.  Ryan says I have contradicted myself in my writings.  I don’t think so, and to the extent that I understand what Ryan is saying about my work, I do not believe he is reading my writings charitably.  But interested readers can decide for themselves.

     Ryan says that I used the occasion of the post he addresses to “try to inject life into the Hoover Institute proposal for an open-ended congressional authorization against ‘Islamist terrorist organizations.’”  This is a baffling statement since I did not mention the Hoover proposal in my post.  In any event, I think Ryan has mischaracterized the proposal, which is neither open-ended nor directed at all Islamist terrorist organizations.   I have responded to similar claims in the past, and once again interested readers can decide for themselves.