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A recent cluster of stories – on al Qaeda’s growth, dispersion, and resilience, on the USG’s increased use of surveillance drones outside of “hot war zones,” on the USG possibly ramping up secret war in Somalia, and on the covert action to arm certain Syrian rebels – got me wondering about the debate in May on the proper scope of the AUMF.  Recall that many members of the Senate Armed Services Committee were surprised and worried about DOD officials’ seemingly very broad construction of the AUMF to authorize presidential uses of force against al Qaeda-affiliated groups in controversial areas (including in Mali, Libya, and Syria).  At the time Senator Levin asked the administration to provide the Committee with a list of “associated forces” covered by the AUMF, and DOD officials said they would. I have it on reliable authority that DOD has responded to Levin’s request, albeit in a classified fashion.  Apparently DOD answered numerous questions for the record by committee members, and some of the answers (the unclassified ones) will be released with the official print of the hearing transcript (which apparently has not yet been released).  I expect that the unclassified responses will walk back some of the broader DOD interpretations of the AUMF conveyed at the May hearing.  Nonetheless, it will be a remarkable testament to this unusual war if -- consistent with the recent use of classified annexes in War Powers Resolutions reports -- many of the actual groups we are in conflict with, and where we are fighting them, remains classified.

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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