23 May Senate Foreign Relations Committee Takes on the AUMF
As several of my friends at Just Security and Lawfare have noted, the Senate Foreign Relations Committee on Wednesday held an, um, interesting hearing on whether the primary domestic law authorizing the use of force against Al Qaeda, the Taliban and associated forces needs to be repealed or revised. Witnesses’ written statements and (more interesting) video of the hearing is here. The hearings featured current DOD General Counsel Stephen Preston, Principal Deputy Legal Adviser at the State Department Mary McLeod, followed by former (Obama) State Department Legal Adviser Harold Koh and former (Bush) Attorney General Michael Mukasey.
The Administration witnesses took a pounding. Some of the harsh questioning was, as ever, partisan bombast seeking to score pre-election points. Some of it was the members’ impatience with the complexity of the (overlapping) domestic and international law in the area. But some of it was the members’ understandable difficulty in trying to follow the witnesses’ at times needlessly confusing responses, viz. “Q: Give me a sense of what you get from the AUMF that you don’t have under existing statutory or constitutional law? A: “…I think it would be fair to say that with or without an AUMF, to the extent that it grants authority for the use of military force against Al Qaeda, the Taliban, and associated forces, in which we are in armed conflict, to the extent that those groups continue to pose a threat of imminent attack against this country, the President does have constitutional authority to act….” And some of it was genuine frustration, viz. “Q: If a bill was introduced today to repeal the  AUMF, would the Administration’s position be support, oppose, or I don’t know? A: As of today, Senator, I think the answer is, we don’t know.”
So does the Administration really think the President’s authority under Article II of the Constitution gives it all the power it needs, even without the AUMF? If one is concerned about this kind of broad inherent executive authority, and if all agree the Al Qaeda of 9/11 is diminished and the nature of the threat of terrorism is evolving, doesn’t that necessarily mean we need new statutory authority to define or constrain the President’s ability to go after these evolving threats? My view: no and no. Here’s why.
(1) Does the Administration really think its legal authority under the Constitution gives it all the power it needs, even without the AUMF? Although their testimony was hardly a model of clarity, the Administration witnesses can’t fairly be understood to have taken the position that the AUMF adds nothing to the scope of existing constitutional authority the President has to use military force. Stephen Preston at least eventually got to the point – namely, that the AUMF authorizes the President to use force against Al Qaeda, the Taliban and associated forces whether or not the targeted members of those groups pose an imminent threat to the United States at any given moment. As a matter of domestic law, the AUMF authorizes an ongoing armed conflict (in which, under the international law of armed conflict on which the AUMF relies, targeting is status based, not threat based). The AUMF has made possible, for example, most of our Afghanistan operations over the past 13 years. In contrast, the President’s inherent authority under Article II is limited to using force against those individuals or groups who do pose an imminent threat. What counts as an imminent threat within the meaning of Article II of the U.S. Constitution? The Administration reiterated the definition Attorney General Holder had earlier offered (a rather much broader definition of “imminence” than that traditionally recognized by international law), and there’s a world of debate (and a whole other post) to be had here. But for present purposes, perhaps enough for now to say there is still daylight between even this broad understanding of “imminence,” and the non-temporally-constrained authority granted by the AUMF.
(2) Do all agree that the Al Qaeda that attacked us on 9/11 is diminished in its capabilities, and the nature of the threat of terrorism is evolving, such that new/revised statutory authority to use force against these new/different groups is necessary? Yes on the first part, no on the second. Among the many critical distinctions obscured by the hearings yesterday (and some of the less well informed writing that has surrounded it) is the difference between terrorist groups that have the desire and the capacity to pose a meaningful and current threat to the United States, and terrorist groups that don’t have one or the other. The absence of that distinction was everywhere. Take Senator Corker’s opening recitation of the now oft-repeated statistic that global terrorist attacks increased by 43% in 2013 over the previous year. Based on State Department statistics, that number is true enough. Terrorist attacks worldwide numbered 9,700 last year, up substantially over the 6,700 the year before. But let’s ask a different question. Like how many private U.S. citizens (i.e. non-members of the U.S. military) were killed last year in terrorist attacks overseas? Answer: 16 total (12 of which occurred in Afghanistan). This is not at all to say such deaths aren’t tragic and absolutely worthy of congressional attention. But compared to, say, the number of traffic fatalities in New York City last year (176), harder to make the case that it is worth declaring war over. Or consider Eli Lake’s breathless article (previewing the Senate hearing) about the terrorist “threat that gathers overseas,” relying in part (again) on the I’d thought debunked notion that “Al Qaeda” now enjoys a safe haven in Iraq. Articles like that one make a lot of people nervous. But they bear deeply questionable relationship to the nature of the near-term or longer term threat we actually face. What is the nature of the threat to the United States or its interests posed by terrorist groups other than AQAP? I’m not sure. I am sure that no light was shed on this question at the Senate hearing. And I am sure that I’d want to have a more reliable answer before voting on any change to existing authorities.