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Responses to My AUMF Suggestion

Benjamin Wittes
Thursday, May 26, 2011, 12:26 PM
I have received two interesting responses to my post from last night suggesting tweaks to the AUMF reauthorization language.

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I have received two interesting responses to my post from last night suggesting tweaks to the AUMF reauthorization language. The first comes from a reader who prefers not to be named, who writes:

Isn't one problem with McKeon's language that it would capture people or groups who support associated forces, even if that support is directed at a different conflict that the associated forces may be fighting? In other words, let's assume that the Islamic Union of Uzbekistan (IUU) clearly is an associated force of al Qaeda. McKeon's language in 3(B) would authorize the [government] to detain members of some obscure Uzbek group that happens to provide support to the IUU's hostilities against the Government of Uzbekistan.  While I suppose there's an argument to be made that the [government] should be able to detain the obscure Uzbek group's fighters because the existence of those fighters allows the IUU to direct more of its own fighters to the conflict against the [United States], it's a pretty attenuated connection.   Your language in your 3(B) is better than McKeon's, but still would reach that obscure Uzbek group.  I think one could close the gap by clarifying that the relevant "hostilities" in 3(B) are those hostilities mentioned in 3(A).  Thus:

(3) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain until the termination of hostilities persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in THOSE hostilities or have directly supported THOSE hostilities in aid of an organization or person described in subparagraph (A).

In addition, Daphne Eviatar of Human Rights First sent in the following response:
I appreciate that Ben has acknowledged the problem with McKeon’s proposed new AUMF language, which Bobby and I and many others have pointed out.  And I agree that the new language Ben proposes – essentially saying the U.S. can target and detain those who “harbor” rather than those who merely “support” our enemies -- is better than what’s in the current bill. However, I don’t think Ben’s language fixes the problem.  Part of the difficulty lies in the complex realities of the Af-Pak region, and the fact that al Qaeda and the Taliban, let alone “associated forces,” are not clearly defined entities.  While some Taliban may present a threat to the United States, others are aimed only at gaining power and asserting control over the regions where they reside.  Their only beef with the United States is that we’ve been trying to get rid of them since 2001.  So for Congress to assert that we’re in an ongoing and indefinite conflict with “the Taliban” is itself problematic.  Given that the U.S. and Afghan officials are also reportedly engaging in peace talks with some Taliban leaders, this new AUMF could quickly become outdated. Although al Qaeda has more directly made its aims against the United States clear, the definition and parameters of that group remain difficult to discern. Indeed, with the death of Osama bin Laden, it’s not even clear who currently leads the organization, and who exactly is affiliated with it and could accurately be described as an “associated force.”  Our understanding of this will depend in large part on the quality of our intelligence, which will, in turn, inform our understanding of who are the United States’ true enemies.  Herein lies the problem.  After September 11, 2001, the United States declared war against those who attacked us.  That placed some limits on which enemies the U.S. could target and detain.  But any AUMF that’s not tethered to the September 11 attacks will necessarily be targeting an ill-defined group of organizations, individuals and possibly even nations that, depending upon shifting circumstances, the president believes is engaged in or planning hostilities against the United States, or supporting others who are doing so.  Even if Congress were to accept Ben’s suggestion to replace the McKeon bill’s authorization to target those who “substantially support” our enemies with the narrower authority to attack those who “harbor” our enemies, it wouldn’t solve the problem.  Today, for example, that could plausibly authorize the United States to invade Pakistan, since at least some elements of the Pakistani government are known to be harboring al Qaeda and Taliban-linked terrorist groups, such as Lashkar-e-Taiba.  Indeed, Pakistan may have been harboring Osama bin Laden himself. Of course, the United States should be vigilant in the fight against terrorism, and U.S. military and intelligence agencies should be constantly gathering information about who out there is threatening us, wherever they may be.  If the threat is imminent, the military can act as a matter of self-defense, without any need for a declaration of war.  If the threat is real but not imminent, U.S. law enforcement can investigate, arrest and prosecute those it learns are plotting against the United States.  Which is, of course, exactly what the FBI and Justice Department have been doing, quite effectively, since September 11.  As Ben acknowledges, Rep. McKeon’s proposed AUMF confuses targeting and detention authority.  That the D.C. Circuit has accepted the Obama administration’s claims of detention authority does not mean that the president has the legal authority to kill all those it can imprison. That interpretation would land the United States well beyond the bounds of settled international law.  Ben tries to address this problem in his proposed tweaks to the language.  But the targeting authority still remains vague, as I’ve pointed out above.  And even the detention authority he proposes is beyond the scope of the current policy. Because subsections (A) and (B) are linked by “or”, the provision clearly intends to include individuals beyond those who “are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners” – the detention authority the Obama administration has asserted. But it’s not clear who subsection (B) is intended to encompass.  The result is, once again, far broader authority to target, kill and detain poorly-defined enemies of the United States without prior Congressional debate or approval. As an unnamed U.S. official told Politico in a story published this morning, when the U.S. was at war in Korea and Vietnam, the U.S. government didn’t declare war against all communist governments and sympathizers worldwide.   Similarly, for Congress to now declare a “war” against all of these undefined entities without a clear understanding of who they are, who leads them and what are their aims, is to hand the president far more authority than he needs, or than U.S. national security demands.  On the contrary, it’s likely to spark a backlash among extremist groups and other would-be warriors that currently have no desire to attack the United States. And that could embroil us in a far longer and more difficult war than we ever imagined. Public opinion is turning against the war in Afghanistan and certainly doesn’t support expanding that war worldwide. President Obama is, I think reasonably, trying to carefully contain it.  He made clear in his bold veto threat earlier this week that he does not need or want a new blank check to declare war far and wide.  There is simply no reason, then, for Congress to give that to him.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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