My Final Response to Jennifer and Steve
We address all of Jennifer and Steve’s latest arguments in our paper, and so I urge any interested reader to look for responses there. I will limit myself here to one point. Jennifer and Steve believe that when the threats covered by the AUMF are eliminated, then we can have “a paradigm shift back toward peacetime.” This is the fundamental disagreement. It is an issue that time will sort out, namely: whether
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We address all of Jennifer and Steve’s latest arguments in our paper, and so I urge any interested reader to look for responses there. I will limit myself here to one point. Jennifer and Steve believe that when the threats covered by the AUMF are eliminated, then we can have “a paradigm shift back toward peacetime.” This is the fundamental disagreement. It is an issue that time will sort out, namely: whether “peacetime” authorities suffice to meet the terrorist threat. If Jennifer and Steve are right about this premise, then of course there is no need for statutory authorization against new threats. We believe they are wrong about this premise (and it seems to be belied by, among other things, rising budgets for JSOC and drones, the new base in Niger, the administration’s institutionalization of the drone “playbook,” its exploration of how to extend the AUMF to “associates of associates,” and more). If “peacetime” authorities do not suffice, our proposal is far superior on democratic accountability and related legitimacy grounds to the current arc of executive unilateralism that they prefer.
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.
