Starting at the End

by Deborah Pearlstein

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still, he undoubtedly helped himself with Congress and the public in defending his use-of-force policies, and the debate moving forward will be, at the least, somewhat better informed. Second, big picture strategy. Obama urged the need for a comprehensive counter-terrorism strategy going forward, returning repeatedly to the idea that the U.S. war with “Al Qaeda, the Taliban, and associated forces” must end. Some examples from the speech strung together:

“From the Civil War, to our struggle against fascism, and through the long, twilight struggle of the Cold War, battlefields have changed, and technology has evolved. But our commitment to Constitutional principles has weathered every war, and every war has come to an end…. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.” …. [T]he use of force must be seen as part of a larger discussion about a comprehensive counter-terrorism strategy. Because for all the focus on the use of force, force alone cannot make us safe. We cannot use force everywhere that a radical ideology takes root; and in the absence of a strategy that reduces the well-spring of extremism, a perpetual war – through drones or Special Forces or troop deployments – will prove self-defeating, and alter our country in troubling ways…. All these issues remind us that the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing….”

This view is important, strategically sound (the world can make terrorists faster than America can kill them), and consistent with U.S. and international law understandings that there is and should be a legal dividing line between law at war, and law at peace. It signals the recognition of an end game, of the need to address terrorism not as a war-emergency but as a chronic disease, potentially fatal if not managed appropriately. Especially critical among the statements of strategy in light of the series of recent hearings in Congress on the need for a revised AUMF was the President’s announced refusal to expand it:

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.

The speech leaves unclear who, other than AQAP, the Administration thinks counts as an “associated force” of Al Qaeda, so it is likewise unclear how much it matters the President’s commitment not to expand the authority further. By including AQAP under the AUMF blanket, the administration already reads its AUMF use of force authority to extend to a group that did not exist in 2001 and that itself played no role in the attacks of 9/11. Nonetheless, it was somewhat reassuring to hear the President reject an interpretation of the law that would have it extend automatically to any group calling itself Al Qaeda. And his commitment not to sign an expanded AUMF suggests he will not be proceeding simply by adding the names of new terrorist groups to the list the AUMF already covers (namely Al Qaeda, the Taliban and “associated forces”), or by removing the statutory link to the attacks of 9/11 the AUMF currently requires, or by delinking AUMF authority from the requirement (recognized by the Supreme Court) that the statute be informed by the international law of armed conflict. And in principle at least, as the President implicitly recognized, the end of the AUMF war brings legal consequences. As he put it, “we bring law of war detention to an end.”

In the meantime, even in the President’s terms, there is at the very least more than a year between now and anything like the beginning of an end (when combat troops leave Afghanistan). Look forward to a summer of ongoing conversations with Congress and the public about who we can target under the AUMF, and what process they’re due.

http://opiniojuris.org/2013/05/23/starting-at-the-end/

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