As Ben noted, I have a short essay on extra-AUMF threats as part of a Hoover Institution Task Force on National Security and Law series. Drawing on Bobby’s important paper on the topic, I briefly explain why terrorist threats not covered by the AUMF are growing. I then outline the possible (domestic) legal bases to meet these threats, ranging from Article II to three basic options for a new or revised AUMF. None of the statutory options is feasible, however, without Obama administration support. As I say at the conclusion of the essay:
Complicating all of these statutory possibilities is the fact that the Obama administration does not want the legacy of seeking and signing a new AUMF that puts the “war on terror” on a broader and more permanent foundation. This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II. We will see if these authorities suffice to meet the threat.
Given the Obama administration’s first-term resistance to expanding the AUMF, the President’s statement in his SOTU address that a “decade of war is now ending,” and Jeh Johnson thoughts on what the end of the AUMF-war might look like, one might conclude that the Obama administration -- worried about the legacy implications of renewing the AUMF -- won’t go along with a new AUMF. However, as Rosa Brooks most recently notes, war in the form that has been fought in places like Yemen and Somalia is not ending anytime soon. And as I have suggested before, the legal hurdles to meeting extra-AUMF threats appears to be arising most quickly and poignantly in Libya, Mali and neighboring countries. It is in Northern Africa, I think, that we will see how the Obama administration reconciles its apparent commitment to not extending the AUMF with its commitment to the rule of law.