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Agreeing with Harold Koh on the Need For and Contours of a New AUMF

Jack Goldsmith
Friday, May 23, 2014, 11:28 AM
I find myself mostly agreeing with the essentials of Harold Koh’s testimony and post on "ending" the Forever War, especially his proposal for a new and narrowed AUMF.  I hope this doesn’t cause my old teacher to change his mind. By ending the Forever War, Koh appears to mean (a) declaring war against al Qaeda (and, possibly, its affiliate and copycat organizations) to be over, (b) repealing the AUMF, and (c) establishing a n

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I find myself mostly agreeing with the essentials of Harold Koh’s testimony and post on "ending" the Forever War, especially his proposal for a new and narrowed AUMF.  I hope this doesn’t cause my old teacher to change his mind. By ending the Forever War, Koh appears to mean (a) declaring war against al Qaeda (and, possibly, its affiliate and copycat organizations) to be over, (b) repealing the AUMF, and (c) establishing a new presidential-congressional legal basis for actions against terrorism threats. As for (a) and (b), the President arguably (probably, in my view) has the authority to declare the conflict against al Qaeda to be at an end, though doing so would be controversial and politically risky.  If he did so declare, he would still have the authority under Article II to target and kill terrorists who pose an adequate threat to the United States.  But his authority to incapacitate al Qaeda members and associates under a military detention rationale would weaken significantly and at some point dissipate.  That, I think, is the main hurdle to declaring war against al Qaeda to be at an end – it would jeopardize detention authority over detainees the administration has deemed very dangerous but not subject to trial.  Koh does not address this key stumbling block in his post, but in his testimony he speaks favorably of Steve Vladek’s proposed “compromise solution wherein the government transfers or otherwise releases all of the detainees who have been cleared for transfer, moves all of the other detainees into the United States, and accepts a repeal of the AUMF in favor of a more specific authorization for long-term civil detention of those detainees who are too dangerous to be released, and yet who cannot be subjected to trial in civilian or military court.”  Steve’s proposal for congressional detention authority for non-triable legacy detainees could of course play itself out in other ways – for example, by leaving the non-triable detainees on GTMO.  But the important point is that, as Koh implicitly acknowledges, the President needs some solution for non-triable detainees in order to declare the conflict with al Qaeda to be at an end.  Steve’s proposal strikes me as a good starting point for addressing this hard issue. Koh also says that “at the right moment, AUMF repeal would leave no legal gaps.”  I think he is right – for reasons that the administration has laid out, and as Bobby’s paper explains in detail – when it comes to targeting and related actions against morphing al Qaeda-related terrorist threats.  It does leave a potential gap for military detention going forward.  But the administration for six years has gotten by without new detainees beyond Afghanistan (where U.S. involvement is winding down), and it believes such detention authority is not needed going forward.  I don’t have strong or terribly informed views on that question, except to say that new military detention authority would come at a large political and legal cost, and that a combination of other approaches, including targeted killing, home-country or third-country detention, and U.S. criminal trials in civilian courts and military commissions, might suffice to fulfill terrorist incapacitation needs. Turning to (c), Koh once again makes the point that for counterterrorism operations going forward, “an Article II constitutional framework, guided solely by classified Presidential Policy Guidance” is not ideal, and that joint presidential-congressional action is preferable.  As he correctly says, “both legal authority and political legitimacy would be maximized if Congress and the President could work together to ensure that the authority given to the President reflects the current threat facing the U.S., not the threat that existed on 9/11.”  I disagree with Koh that merely repealing the AUMF and grounding counterterrorism operations in Article II alone counts as meaningful congressional participation.  This particular proposal strikes me as a non-starter from Congress’s perspective and a large functional expansion of the Forever War that unmoors it entirely from congressional approval. However, Koh has another, much more fruitful proposal: “Congress could narrow the AUMF’s mandate to recognize the evolving nature of the threat facing the U.S., and start the process of shifting legal authority from an ‘armed conflict’ theory to a ‘current threat’ theory.”  In his testimony Koh proposed a statute that would “authorize the President to use force against those groups or individuals who pose a continuing and imminent threat to the U.S. by virtue of: (1) having already attacked the U.S.; (2) engaging in a concerted pattern of continuing armed activity directed against the U.S.; and (3) actively planning, threatening, or perpetrating armed attacks against the U.S.”  As I said yesterday, I very much like this proposal, and I also like the other elements of Koh’s proposed statute, which, as Bobby, Matt, and Ben, and I also proposed, would contain a sunset clause and strengthened congressional and public reporting requirements. Koh does not like our further proposal to “require the executive branch to identify particular groups that are covered by that authorization of force, drawing on the State Department’s Foreign Terrorist Organization designation process.”  But in my view, the FTO process is not essential to AUMF reform.  What is needed is some process that will (as we wrote) “cabin[] presidential power while at the same time giving the president the flexibility he needs to address emerging threats,” and at the same time “render more transparent and regularized the now very murky process by which organizations and their members are deemed to fall within the September 2001 AUMF.”   We sought to achieve these aims with FTO-like listing.  Koh focuses on ensuring that Congress is “informed as to which groups are covered under the AUMF and in which nations the Department of Defense believes Congress has authorized the President to use military force,” and he also proposes public notice about “where and against whom the President is using military force under congressional authorization.”  (As I wrote last year, it “should not be a surprise to the American people – and certainly not to DOD’s main oversight Committee – where and against whom Congress has authorized the President to use military force.”)  It is crucial to ensure that the process of determining who we are at war against is regularized and as transparent as possible, and if there is another way to achieve that end besides FTO listing, that is great. In sum, there are powerful arguments for a new and narrowed AUMF, with authorities and limitations and reporting requirements along the lines proposed in Koh’s testimony and post.    Koh is right that a large hurdle to these reforms is “the dysfunctionality of our legislative process and the reality that Congress and the executive branch have been out of sync on these issues for many years.”  But as I said yesterday, the President has the veto power and Article II, so maybe he will give it a try, perhaps as part of an attempted grand bargain that includes a way forward on GTMO along the lines Steve proposes.  I know that some people in the administration do not like the idea of a new AUMF on the President’s watch.  It seems pretty clear, however, that a replacement AUMF is necessary for any grand bargain that repeals the current AUMF and addresses the legacy detainees at GTMO.  It also seems pretty clear that the naked Article II alternative will be no better, and almost certainly worse, for the President’s legacy.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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