Foreign Relations & International Law

Response to Jennifer and Steve on Statutory Authority and Next-Generation Threats

Jack Goldsmith
Monday, March 18, 2013, 9:06 AM
Jennifer and Steve describe the statutory proposal for next-generation terrorist threats by Bobby, Matt, Ben, and me as a “sweeping and preemptive militarization of counterterrorism” which is “not just unnecessary on current facts, but also deeply misguided—and likely counterproductive—as a matter of policy and prudence.”  Not surprisingly, I disagree. Begin with

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Jennifer and Steve describe the statutory proposal for next-generation terrorist threats by Bobby, Matt, Ben, and me as a “sweeping and preemptive militarization of counterterrorism” which is “not just unnecessary on current facts, but also deeply misguided—and likely counterproductive—as a matter of policy and prudence.”  Not surprisingly, I disagree. Begin with whether there is problem that needs to be addressed.  A recent Washington Post story suggests that the administration believes there is a serious problem, that it is more pressing than we originally stated, and that the solution the administration is groping toward is far from ideal.  The story says that the AUMF is “being stretched to its legal breaking point, just as new threats are emerging in countries including Syria, Libya and Mali.”  It quotes a senior Obama administration official for the proposition that “[t]he farther we get away from 9/11 and what this legislation was initially focused upon . . . we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”  The official added that the waning relevance of the AUMF is “requiring a whole policy and legal look.”  The story notes that “legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called ‘associates of associates.’”  This comes on top of the creation of a new base in Niger for drones which, it is widely believed, will one day be armed and deployed in North Africa. Extra-AUMF threats directed at the United States are a problem today, and are will only grow worse over time.  No administration will ignore these threats.  The only issues are how the threats will be addressed, and on what legal basis.  Jennifer and Steve agree with us that such problems should be addressed through some combination of law enforcement authorities and military authorities.  And we all agree on the legal basis for law enforcement authorities.  That leaves only the question of the legal foundation for the exercise of military authorities against extra-AUMF threats. Jennifer and Steve prefer a combination of the current AUMF and Article II.  They think that such an approach will be more limited or cabined than the one we propose.  I am skeptical.  As the administration’s “associates of associates” gambit suggests, and as the history of the past dozen years shows, and as the unilateral opening of the Niger base implies, Executive branch lawyers have many tricks up their sleeves for secret expansion of the AUMF.  Especially if these AUMF authorities are deployed only for targeting, they will likely never be reviewed by a court.  Jennifer’s and Steve’s limitation of statutory authorities to the current AUMF is thus not a recipe for ending armed conflict – it is, in light of the realities of ever-present threats, a recipe for continued armed conflict via secret and ever-more-tenuous expansions of the AUMF.   (I am a bit surprised about the ease with which Steve and Jennifer conclude that AQAP is covered by the current AUMF, so perhaps they, like the administration, embrace a relatively open-ended interpretation of the AUMF; but I note, for reasons stated in our piece, that such interpretive expansions of the AUMF are not a stable solution and are increasingly illegitimate.)  Moreover, I agree with Steve and Jennifer that Article II is a possible solution to terrorist threats; but I also believe, as we said in our piece, that “presidential action based on statutory authority has more political and legal legitimacy than action based on Article II alone.”  In addition, Steve’s and Jennifer’s proposal would include none of the clarifying (or potentially narrowing) interventions by Congress that our proposal contains.  Nor would their proposal contain the accountability mechanisms that we propose, including the relatively robust and public and deliberate administrative process for adding threatening new groups (as opposed to the secret and ad hoc way they are added now), and much “more thorough ex post reporting and auditing” than is currently the case. Steve and Jennifer say that “a key—and possibly principal—objective of the CGWW proposal is to provide authority to this and future presidents to detain terrorism suspects without charge.”  That is simply untrue.  Our essay discusses detention and targeting under a new AUMF, it notes that statutory authority is probably needed for any medium-to-long-term detention of persons who pose extra-AUMF threats, and it acknowledges that statutory authority is an advantage for a “future administration [that] might regard such detention as necessary in some circumstances.”  But we did not wade in to the thorny issue of whether new detentions are necessary, or when detention as opposed to targeting is preferred, or the possible relationship between the unavailability of detention and enhanced rates of targeting, and how that tradeoff should be managed.  These are all hard issues on which Ben, Bobby, Matt and I probably disagree.  But there are many legitimacy and democracy-enhancing benefits to our proposal over the current one even if Congress authorizes only targeting (as opposed to detention) authority, or even if Congress gives the President detention authority and he (like President Obama) declines to use it.  Detention is not the only thing, and is not the most important thing, at stake in this debate. Other points on which we think Steve and Jennifer misinterpret or mischaracterize or misunderstand our argument: (1) they say that we propose, “in effect, a paradigm shift: from defensive uses of force in response to an imminent terrorist threat to offensive uses of force to preempt such threats from even arising” – but actually, quite the opposite, our proposed definitions of targetable groups are expressly limited to those who have committed a belligerent act against the United States or who present an “imminent threat”; (2) they describe our proposal as “an expansion of statutory authorities to use military force” – but given the possibility of extending the AUMF to “associates of associates,” and the likelihood that such expansion, if limited to targeting, would never be subject to judicial review, and that it would lack any of the limiting or accountability mechanisms we propose, we think that our proposal is more cabined, and certainly more legitimate, than the trajectory of current law that Jennifer and Steve embrace; (3) they say that we advocate “open-ended and permanent declaration of armed conflict,” but in fact we argued for authorities that contain express and stricter substantive and temporal limits than the the unilateral executive branch expansions of the AUMF combined with unilateral Article II authorities that they prefer; and (4) they criticize our accountability proposals (sunsets, limiting targeting categories, enhanced reporting and review, etc.) as ineffective, but they do not explain why they think the current methods for expanding the AUMF via interpretation, and of unilateral executive decisions deciding who can be targeted, are better. While I disagree with Jennifer and Steve, I think this debate is fruitful.  As the WP story makes clear, there is at present no “giant desire to have ‘Son of AUMF’ now” – in the administration, or on the Hill.  But one day, probably sooner rather than later, an event in the world will trigger that desire, and it is best then if all of these arguments are fleshed out now.

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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