AUMF 2.0

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.”

The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.”

So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do? Former DOD General Counsel Jeh Johnson suggested before his departure that when Al Qaeda ceased to be a coherent enough enemy to justify a state of armed conflict, U.S. counterterrorism would mostly return to a field dominated by international policing and intelligence work (the way most of the rest of the world treats it still). Others have suggested the opposite direction: new congressional authority to use force against a new/different/alternative list of terrorist organization enemies. My friends over at Lawfare, Bobby Chesney, Matt Waxman, Jack Goldsmith and Ben Wittes, are hard at work on just what a statutory framework should be.

The problem is, deciding what we should do next is a lot harder than determining what we could, legally, do next. AUMF II proposals (for lack of a better descriptor) turn on the critical assumption that law enforcement and intelligence tools (coupled with the rare Presidential use of force in national self defense – a power used rarely and publicly before 9/11) will be inadequate to address the emergent terrorist threats. But the accuracy of that assumption is far from clear. In part, the assumption is based on a lesson taken from the history of U.S. counterterrorism leading up to 9/11, in particular the notion that but for a failure of legal authorization the United States could have killed bin Laden in the 1990’s. But law was hardly the only (or indeed, sometimes any) issue. In his book, Peter Bergen explains that many of the best chances to target bin Laden were missed not as a result of legal constraints but because we rarely knew where he would be with 8+ hours lead time, the amount of time it took to ready and land a cruise missile, our best available weapon for such a purpose then. On one occasion when we did have such time (in 1999), CIA Director Tenet determined striking bin Laden was not worth the political price we would have paid, killing a group of U.A.E. civilian allies of the United States also present at the same hunting camp. As a matter of law though, especially after the 1998 U.S. embassy bombings in Kenya and Tanzania, a strike against bin Laden in those circumstances (assuming it otherwise necessary, proportional, etc.) could have been legally justified even under pre-2001 international law understandings as national self-defense.

Then there’s the other side of the legal authorization ledger – the criminal and intelligence powers (and capabilities) available to the U.S. government today that didn’t exist in the lead up to 9/11. From the range of federal criminal offenses that now apply extraterritorially (like receiving military-type training from or on behalf of a designated terrorist organization) to vast statutory surveillance authorities, from the creation of the National Counterterrorism Center to the substantial expansion in U.S. intelligence resources focused directly on violent jihadist threats – our government is better organized and empowered to identify and confront the next bin Laden (should he emerge) in ways short of requiring the launching of another armed conflict (or two or three or four).

In any case, as the 9/11 Commission Report details, the threat bin Laden and his organization posed by the mid-late 1990’s was very clear to U.S. intelligence and executive branch policy makers. Bin Laden had declared war against America, his stated goals expressly involved America, he had already engineered significant attacks against this country, and was actively developing others. There’s little doubt that today’s violent jihadist groups in Mali and Somalia and Syria and Libya pose various dangers. Do they harbor the intent and the capability to carry out attacks in the United States, or are they otherwise a great enough threat to the United States to justify effectively declaring war – again? Coll and others aren’t so sure. Historically, democracies expected a public case to be made before determining that new war authorities were necessary. That case hasn’t yet been made.