AUMF: Scope and Reach

The Unreality of “Ending the War”

By Jack Goldsmith
Friday, June 13, 2014, 10:32 AM

The march of ISIS across Iraq (and in Syria), and the Obama administration’s scramble to react to it, and the new round of drone strikes in Pakistan, and continuing and growing Islamist terrorist threats from North Africa to Yemen to Afghanistan and many places in between, all got me thinking about President Obama’s NDU speech last year, where he said:

The AUMF is now nearly 12 years old.  The Afghan war is coming to an end.  Core al Qaeda is a shell of its former self.  Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States.  Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.

So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.  And I will not sign laws designed to expand this mandate further.  Our systematic effort to dismantle terrorist organizations must continue.  But this war, like all wars, must end.  That’s what history advises.  That’s what our democracy demands.

The President’s speech implied what he and administration officials have suggested elsewhere, namely, that the Obama administration would like to declare “the war” (i.e. the AUMF war) over, and switch to ostensibly “non-war” authorities to deal with residual terrorist threats.  Former DOD General Counsel Jeh Johnson made this point explicit, and probably captured what the President means by post-AUMF efforts to dismantle terrorist organizations, in his Oxford Union speech.  There he described a post-AUMF world consisting of "a counterterrorism effort against individuals who are the scattered remnants of al Qaeda, or are parts of groups unaffiliated with al Qaeda, for which the law enforcement and intelligence resources of our government are principally responsible, in cooperation with the international community – with our military assets available in reserve to address continuing and imminent terrorist threats” (my emphasis).

The picture of “ending the war” and switching to “non-war” authorities with military assets in reserve makes it seem like the main event is over or almost over.  But the main event is not nearly over.  Terrorism threats contrary to U.S. interests are growing, not abating.  In this sense there is a large unreality to the President’s statement that “this war, like all wars, must end.”  Perhaps the AUMF war must end.  But military conflict against Islamist terrorist organizations that threaten the United States and its interests will not end any time soon.  The degree to which growing Islamist power today threatens the United States homeland and its interests is uncertain, but it is clearly moving in a bad direction from the U.S. perspective.

This trend raises several issues.

Are “law enforcement and intelligence resources,” with “military assets available in reserve,” capable of addressing growing Islamist terrorist power, or will the United States in fact rely pervasively on hard military power – probably in stealth form through Special Forces, drones, covert action, and support to local militaries – to address the threats?  My guess is the latter, and that such hard military power will need to be deployed in many nations.

If I am right, then the question becomes whether it is good for our nation, for our democracy, to switch to the post-AUMF scenario apparently contemplated by the administration, in which the President uses military force in various forms, mostly in secret, pursuant to his Article II authorities.  I think not.  We should neither rely on the AUMF as the legal basis for fighting the growing extra-AUMF terrorist threats, nor slide in to reliance on Article II, which enhances presidential discretion to use force in secret.  Rather, the Congress (and the nation) should debate the nature of the growing extra-AUMF threats and decide what authorities the President should have to address them, and with what substantive and procedural limits.

The President in the NDU speech suggested that congressional participation in authorizing and shaping the President’s military authorities against morphing Islamist threats somehow entails “unbound powers more suited for traditional armed conflicts between nation states.”  This is a fiction.  It is the shift to Article II authorities, combined with the rapidly expanding Islamist terrorist threat, that entails practically unbound presidential war powers, since the United States’ use of military force will grow invariably to meet the growing threat.  And yet we as a nation are not seriously debating whether, and how, and on what authorities the President should be addressing those threats.  The Executive branch alone is deciding those issues, and increasingly acting on the basis of Article II to address them.

There is a pretty legal question whether Article II even suffices to address the growing terrorist threats.  Making a complex story too simple, the President’s Article II power to use force without congressional authorization is mostly limited to the “use the armed forces to protect the nation and its people,” i.e. in self-defense.  The Obama administration stretched this notion in its justification for the invasion of Libya (as I explained here), and would have stretched it even more in its planned (but aborted) attacks on Syria (as I explained here and, more briefly, here).  And the administration will stretch it yet further as it continues to address terrorist threats – like the ones in Syria and Iraq – that post a medium-term but not imminent threat to the United States.  (Ironically, the administration might be able to rely on the 2002 AUMF for Iraq – which I believe it recently indicated it wanted to repeal – if it uses military force in Iraq.)

In sum: There is a growing mismatch between the Obama administration’s fixation with ending “war” and the reality of the growing Islamist terrorist threat.  There is also a growing mismatch between the morphing terrorist threat and the proper legal authorities needed to address it.