Stephen Preston’s Important Acknowledgement that the 2001-AUMF-Forever-War is Not Ending Anytime Soon

By Jack Goldsmith
Friday, April 17, 2015, 9:01 AM

Stephen Preston’s speech at last Friday’s ASIL Meeting was the latest of many efforts by the administration to explain (in Preston’s words) “the bases, under domestic and international law, for the United States’ use of military force abroad.”  It was a good and informative speech, and good that he gave it.  Especially noteworthy, I thought, was Preston’s full explanation of why the administration thinks Congress has already authorized force against the Islamic State.  Others have weighed in on this and other aspects of the speech – for example, Bobby here, and Marty Lederman here.  Below I address an important but underappreciated element of the speech that Bobby touched on only briefly: Preston's acknowledgment that the Forever War is not ending anytime soon, and that the Obama administration no longer believes it can repeal the 2001 AUMF without replacing it with new congressional authorities to continue the war against al Qaeda and associates.

Preston stated that the administration is taking “direct action (that is, capture or lethal operations) under the authority of the 2001 AUMF, including associated forces,” against the following entities: (1) al-Qa’ida, (2) the Taliban, (3) certain other terrorist or insurgent groups in Afghanistan, (4) al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; (5) individuals who are part of al-Qa’ida in Somalia; (6) individuals who are part of al-Qa’ida in Libya; (7) “the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria; and (8) the Islamic State, or ISIL.  In short, the 2001 AUMF is a basis for capture or lethal operations against several related groups and individuals in at least 6 countries.  Most of these adversaries remain dangerous and in many respects – especially in Libya, Yemen, and Syria – the danger appears to be growing.

One might expect that since the 2001 AUMF is so important a legal basis for so many U.S. counterterrorism operations, the Obama administration would be working to strengthen and clarify the AUMF.  And yet President Obama famously proclaimed in 2013 that he wanted “to refine, and ultimately repeal, the AUMF’s mandate.”  And he reiterated last year, when sending up his proposal for an ISIL-specific AUMF, that he was “committed to working with Congress and the American people to refine, and ultimately repeal, the 2001 AUMF.”  Most observers – especially in 2013, but also last year – took these statements to mean that the President wanted to wipe out the AUMF mandate altogether as part of ending the conflict against al Qaida and associates.

I read Preston’s speech to acknowledge that this is no longer the President’s ambition.

First, Preston emphasized that hostilities in Afghanistan are not ending anytime soon despite President Obama’s claim that “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”  As Preston said: “Because the Taliban continues to threaten U.S. and coalition forces in Afghanistan, and because al-Qa’ida and associated forces continue to target U.S. persons and interests actively, the United States will use military force against them as necessary.  Active hostilities will continue in Afghanistan (and elsewhere) at least through 2015 and perhaps beyond.”

Second, Preston repeated President Obama’s statements about wanting to “refine, and ultimately repeal” the 2001 AUMF.  But a repeal of the 2001 AUMF, without a substitute authorization to use force against al Qaeda and associates, is out of the question because, as Preston made clear, the 2001 AUMF is the main legal authority for the vast majority of U.S. counterterrorism operations against threats that are not receding.  And so, in perhaps the most newsworthy (but largely unnoticed) line in the speech, Preston reinterpreted President Obama’s aim to “refine, and ultimately repeal” the 2001 AUMF to mean that the President wants “to tailor the authorities granted by the AUMF to better fit the current fight and the strategy going forward.”  He added that the President “stands ready to work with Congress to refine the 2001 AUMF after enactment of an ISIL-specific AUMF.”  Refine, that is, without mention of repeal.

I have a hard time believing that the administration really wants to engage Congress to alter and update the authorities of the 2001 AUMF.  I think this because the administration has since 2009 talked about but failed to do this; because the administration has not exactly pushed hard for the ISIL-specific AUMF; because, as Preston makes clear, the administration thinks that the 2001 AUMF is both adequate authority for the fight it faces and truly constraining; and because,  even if the administration did push hard for a replacement AUMF for al Qaeda and associated forces, it seems impossible that the current Congress – which flubbed enactment of an ISIL-specific AUMF – could get its act together to craft a replacement for the 2001 AUMF that was both empowering and restraining in a way that suits the President.  Bottom line: We are stuck with the 2001 AUMF for quite a while longer.