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A Quick Guide to the Lawfare Debate Over a New AUMF

Steve Vladeck
Wednesday, May 8, 2013, 2:33 AM
As Andrew Rosenthal noted in yesterday's New York Times, things seem to be heating up in Congress with respect to whether--and to what extent--the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or replaced.

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As Andrew Rosenthal noted in yesterday's New York Times, things seem to be heating up in Congress with respect to whether--and to what extent--the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or replaced. To that end, the Senate Armed Services Committee has now scheduled a hearing on the same subject for next Thursday morning, May 16.
Those following this conversation may therefore be interested in the rather involved series of exchanges we had over here on Lawfare back in March, spurred by Bobby, Jack, Matt, and Ben's Hoover Institution white paper, "A Statutory Framework for Next-Generation Terrorist Threats." At the core of the white paper is the idea that, when the time comes, the AUMF could/should be replaced with a statute that delegates to the President the authority to publicly identify those groups who pose a particularly grave threat to U.S. national security going forward, and authorizing the use of military force against those groups once they have been so designated.
Jennifer Daskal and I wrote a series of posts in response to the Hoover paper, provoking replies, in turn, from two of the paper's four authors. Thus, for ease of reference, and below the fold, I'm providing a (slightly) annotated guide to the nine(!)-part back-and-forth:
  1. Jen and I opened the salvo with a long response to Bobby, Jack, Matt, and Ben, which, among other things, criticized their proposal as a solution in search of a problem, and sought to highlight both (1) the abilities and capabilities of ordinary law enforcement and self-defense authorities in meeting such "next-generation" threats; and (2) the importance as a matter of law and policy of differentiating between those groups responsible for 9/11 and those who pose more diffuse threats to U.S. interests overseas.
  2. Jack responded to Jen and me, stressing why so-called "extra-AUMF threats" are a problem worth solving--and why the AUMF is an increasingly poor vehicle through which to meet such threats--while extolling the virtues of the added transparency that the Hoover paper proposes.
  3. Jen and I replied, seeking to sharpen the points of agreement (e.g., greater transparency with regard to who and where we're fighting) and disagreement, and stressing that, even if extra-AUMF threats justify a new use-of-force authorization, the (in our view) better way to handle such threats is on a retail, rather than wholesale, basis.
  4. Jack surreplied, reiterating his skepticism that extra-AUMF threats can be handled adequately within the existing framework of intelligence-gathering and criminal laws and self-defense authorities, and expressing his concern that shoehorning next-generation threats into the existing AUMF framework will only incentive more secrecy and lack of accountability with regard to the groups and individuals targeted through overseas uses of military force.
  5. Jen and I concluded (we thought) by noting that, if nothing else, increased public accountability for, and legislative oversight of, Executive Branch determinations of the groups against which we are and are not allowed to use force is the one point on which we all appear to agree--and perhaps the least controversial initiative Congress could undertake going forward.
  6. Ben intervened, suggesting that the political reality is such that our current counterterrorism policies are going to continue no matter what, and so the real question is whether they should be left to Executive Branch unilateralism or to more robust congressional involvement and supervision.
  7. Jen and I responded by asking Ben why, even for those who agree with his political analysis, a wholesale delegation to the President of the power to identify terrorist groups against which preemptive military force may be used would be preferable to requiring Congress to specifically identify those groups on a case-by-case basis if and when they're found to pose a sufficient threat to warrant such preemptive uses of military force.
  8. Ben replied by invoking Libya as an example of a situation where a retail approach did not exactly produce specific congressional legislation.
  9. Jen and I surreplied by noting how Libya proves our basic point--that for those who see Libya as an alarming episode for unilateral presidential war powers, Bobby, Ben, Matt, and Jack's proposal will only open the door to more such cases. And for those who see Libya more positively, it's proof positive of the extent to which the President can defend American interests under existing law even without case-specific statutory authorization.
Needless to say, I'm biased with regard to which side had the better of these arguments.
But on whatever side folks come down, I can at least hope that this exchange proves useful to those on the Hill and elsewhere in raising the level of debate on these issues going forward... If we agreed on nothing else, the one point on which we all have common cause is the potential significance of this moment in shaping the future of U.S. counterterrorism policy.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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