AUMF
2.0
March
9th, 2013 by Deborah Pearlstein
I hope
soon to get more directly to the important news of
the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S.
federal court in New York and much else of interest in our pages, but I didn’t
want to let pass without comment the also important piece in
the Washington Post this week that the Obama Administration is
examining whether it should seek to
extend the legal authorization for targeted killing operations beyond those
groups currently identified by the 2001 Authorization for Use of Military Force
(AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and
the Middle East that may embrace aspects of al-Qaeda’s agenda but have
no meaningful ties to its crumbling leadership base in Pakistan. Among them
are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the
September attack on a U.S. diplomatic post in Benghazi, Libya. As the article
rightly explains, these are “militant groups with little or no connection to
the organization responsible for the attacks on Sept. 11, 2001.”
The
AUMF has been the cornerstone of U.S. domestic authority to detain and target
members of the Taliban, Al Qaeda and “associated forces,” but it is limited by
its terms, by Administration interpretation, and by the courts to uses of force
against these groups. As the U.S. prepares to leave Afghanistan and as the Al
Qaeda that attacked the United States on 9/11 collapses, the AUMF is of
decreasing import. More, as Steve Coll recently wrote,
distinguishing the AUMF’s target groups from various violent Jihadi
successor groups in Yemen, Mali and elsewhere: “A franchise is a business
that typically operates under strict rules laid down by a parent corporation;
to apply that label to Al Qaeda’s derivative groups today is false.”
So if
the AUMF doesn’t authorize the use of force against the next generation of
terrorist organization, what should we do? Former DOD General Counsel
Jeh Johnson suggested before his departure that when Al
Qaeda ceased to be a coherent enough enemy to justify a state of armed conflict,
U.S. counterterrorism would mostly return to a field dominated by international policing and intelligence
work (the way most of the rest of the world treats it still). (or) Others have suggested the
opposite direction: new congressional
authority to use force against a new/different/alternative list of
terrorist organization enemies. My friends over at Lawfare,
Bobby Chesney, Matt Waxman, Jack Goldsmith and Ben Wittes, are hard at work on
just what a statutory framework should be.
(the U.S. would not need a new Congressional authority to
use force because its law enforcement and intelligence tools will be adequate to
address the emergent terrorist threats -- but for a law like AUMF, Bin Laden could
have been killed prior to 9/11 attack)
The
problem is, deciding what we should do next is a lot harder than determining
what we could, legally, do next. AUMF II proposals (for lack of a better
descriptor) turn on the critical assumption that law enforcement and
intelligence tools (coupled with the rare Presidential use of force in
national self defense – a power used rarely and publicly before 9/11) will be
inadequate to address the emergent terrorist threats. But the accuracy of that
assumption is far from clear. In part, the assumption is based on a lesson
taken from the history of U.S. counterterrorism leading up to 9/11, in
particular the notion that but for a failure of legal authorization the United
States could have killed bin Laden in the 1990’s. But law was hardly the only
(or indeed, sometimes any) issue. In his book,
Peter Bergen explains that many of the best chances to target bin Laden were
missed not as a result of legal constraints but because we rarely
knew where he would be with 8+ hours lead time, the amount of time it took
to ready and land a cruise missile, our best available weapon for such a
purpose then. On one occasion when we did have such time (in 1999), CIA
Director Tenet determined striking bin Laden was not worth the political price
we would have paid, killing a group of U.A.E. civilian allies of the United
States also present at the same hunting camp. As a matter of law though,
especially after the 1998 U.S. embassy bombings in Kenya and Tanzania, a strike
against bin Laden in those circumstances (assuming it otherwise necessary,
proportional, etc.) could have been legally justified even under pre-2001
international law understandings as national self-defense.
(another reason against AUMF II is the criminal and
intelligence powers made available to the U.S. gov. after 9/11)
Then
there’s the other side of the legal authorization ledger – the criminal and
intelligence powers (and capabilities) available to the U.S. government today
that didn’t exist in the lead up to 9/11. From the range of federal criminal
offenses that now apply extraterritorially (like receiving military-type
training from or on behalf of a designated terrorist organization) to vast
statutory surveillance authorities, from the creation of the National
Counterterrorism Center to the substantial expansion in U.S. intelligence
resources focused directly on violent jihadist threats – our government is
better organized and empowered to identify and confront the next bin Laden
(should he emerge) in ways short of requiring the launching of another armed
conflict (or two or three or four).
In any
case, as the 9/11 Commission Report details, the threat bin Laden and his organization posed by the mid-late 1990’s
was very clear to U.S. intelligence and executive branch policy makers. Bin
Laden had declared war against America, his stated goals expressly involved
America, he had already engineered significant attacks against this country,
and was actively developing others. There’s little doubt that today’s violent
jihadist groups in Mali and Somalia and Syria and Libya pose various dangers.
Do they harbor the intent and the capability to carry out attacks in the United
States, or are they otherwise a great enough threat to the United States to
justify effectively declaring war – again? Coll and others aren’t so sure.
Historically, democracies expected a public case to be made before
determining that new war authorities were necessary. That case hasn’t yet
been made.
