AUMF: Scope and Reach

What Lisa Monaco Actually Said

By Benjamin Wittes
Monday, July 28, 2014, 4:21 PM

Over at Just Security, Steve Vladeck objects to the piece Jack, Bobby, Matt and I wrote over the weekend on Lisa Monaco's AUMF comments at the Aspen Security Forum. He argues that we are over-reading her comments. I'll let readers judge that for themselves. Here's a transcript (thanks to our intrepid intern, Tara Hofbauer) of what Monaco actually said in relevant part:

Margaret Warner: Actually, a follow-up I’d like to ask to Cathy’s question, which has to do with Guantanamo: When U.S. – major part of U.S. forces leave Afghanistan at the end of the year, will there be any reason to have the AUMF continue? And if so, then under what basis will you be able to continue to hold anyone at Guantanamo?

Lisa Monaco: Yeah, so it’s an interesting question, and one that is going to be the subject of, I think, a lot of debate and discussion over the coming months, and one that I have personally been engaging members of Congress on. There’s nothing in the AUMF statute that is a time delimiter on it. Folks have read it. It’s quite brief. But it does not speak to any time limitation. So, you know, there is---there’s nothing to say---I think you might have some arguments about whether or not---and now I’m drawing on my former legal training, so---I’m a recovering lawyer, as many know. To the extent we’re no longer in a conflict with the Taliban, there may not be a basis to hold those individuals.

Warner: Or directly related to 9/11 or even associated with groups that are associated with those groups.

Monaco: But to your question of is there a reason to have an AUMF---whether it’s the 2001 AUMF---I think is something that we’ll have discussions about. I think there absolutely is a reason to have an authority to enable us to take the fight to these evolving terrorists that we’ve talked about. So the threat from core Al Qaeda is greatly degraded, and what we’re now facing---as has been remarked upon, I think, probably ad nauseam over the last few days---is the emergence of affiliates: the emergence on the one hand of affiliates and the greater determination of groups like AQAP, and we need to continue to have an authority to go after them.

. . .

Raha Wala: Hi, thanks for this really interesting conversation. Raha Wala, Human Rights First. So I wanted to follow up on something that I think you said a couple minutes ago about counterterrorism authorities. You said that, I think you said that, there absolutely does need to be an authority to deal with emerging threats. I wanted to ask you to clarify whether you meant by that a federal statutory use of force authority or some other authority. And if it’s the former, in other words another AUMF or new AUMF, how such an authority would be consistent with the President’s commitment that he gave at the National Defense University in May of last year to get off a permanent war footing for dealing with terrorism and not sign into law any legislation that would expand or increase the AUMF’s mandate? Thank you very much.

Monaco: Sure, it’s a really good question, and it bespeaks the very difficult path we need to tread. So the 2001 AUMF has provided us authority to go after terrorist actors and address the threats that they pose that fit within that definition. We are now 13, 14 years on from that, and we’re seeing the emergence of other actors. The President said at NDU that he wanted to refine and ultimately repeal that authority. It does not mean, however, that we wouldn’t want to seek a narrowed---potentially narrowed---version of that to allow us to go after and address emerging terrorist threats that may not come under this current 2001 authority, because I think it is his preference to always be acting with congressional and statutory authority when at all possible.

Warner: Have you started those discussions with Congress?

Monaco: Yes, yup.

Warner: So that’s very much in the works?

Monaco: It is.