Guest Post: ‘New Battlefields, Old Laws’ – Debate on the Future of the 2001 AUMF

[Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University (as of October 1, 2014)]

As part of the International Institute for Counter-Terrorism’s 14^th Annual World Summit on Counter-Terrorism, a workshop was jointly organised by the ICT and the Institute for National Security and Counterterrorism of Syracuse University (INSCT), as part of the project ‘New Battlefields, Old Laws.’ Started in 2006 to adapt our understanding of laws of war, the NBOL Project brings together scholars and experts who aim to address the challenges for the future of armed conflict.

This year’s NBOL workshop dealt with the way we adapt to new threats and expanding battlefields in counterterrorism and culminated in an Oxford Union style debate on the future of the 2001 AUMF. A video of the debate can be found here.

The debate could not have been timelier as the blogosphere is abuzz following President Obama’s speech on the United States’ ‘Strategy to Counter the Islamic State of Iraq and the Levant (ISIL)’ delivered on the eve of the thirteenth anniversary of the attacks of 11 September 2001. In his speech, the President authorised further air strikes against ISIL militants in Iraq and appeared to authorise air strikes in Syria.   He stated that he secured bipartisan support and welcomed further congressional action, yet also made clear that he did not need further authorisation from Congress to launch the strike. Other official statements made clear that the administration was relying on the 2001 Authorization to Use Military Force, which authorized the use of force against those responsible for the September 11, 2001, as a justification for striking ISIL. This comes despite a national security address at the US Military Academy in May 2013, when Obama said he wanted to repeal the 2001 AUMF.

At the NBOL workshop, Professor Nathan A. Sales of Syracuse University College of Law and Professor Jennifer Daskal of American University Washington College of Law debated the following motion: ‘This House believes that the 2001 AUMF should be amended to authorize force against future terrorist threats’.

They join a long list of scholars and experts who have called on the US administration to either amend, update, or repeal the 2001 AUMF and to clarify the basis for its action against ISIL and other terrorist groups that did not take part in the September 11^th attacks – and in many cases did not even exist at the time of the attacks. See for instance Jens David Ohlin here, Deborah Pearlstein here, Peter Spiro here, Jack Goldsmith here, and Jennifer Daskal here.

While both Sales and Daskal expressed concerned with the current legal framework dealing with terrorist threats in the United States, their opinion differed as to the suitability of the AUMF to deal with emerging threats.

Nathan Sales, who argued in favour of the motion, first discussed three possible options for a new legal framework against terrorist groups: the first is a group specific AUMF which would name specific organizations against which the President is authorised to use force. The second is a general statutory framework that allows the President himself to designate groups against which to use force. The third option is the absence of statute and the reliance on the inherent authority of the President under Article II of the US Constitution.

Nathan Sales then pointed to the legal uncertainty of the 2001 AUMF, which would give insufficient authority to the President to use force against groups with no links to al Qaeda and generally stated that the 2001 AUMF is growing obsolete and should be replaced by a statute that would allow the President to designate future terrorist threats.

He based his argument on the idea that future United States presidents are likely to use military force to respond to future terrorist threats and that the use of military force should therefore be regulated through a legal framework. This legal framework would take the form of a flexible AUMF that would allow the President to designate groups as threats emerge. For Sales, the flexibility of designation should however be restrained by certain substantive and procedural criteria, including pre-designation consultation with Congress and some public notice. He suggested also that such a Statute could be tied to international law principles including the right of self-defence.

Sales made the counterintuitive claim that this framework would constrain the President better than relying solely on the President’s inherent constitutional authorities.  He also suggested that such a delegation of power would be more modest than the 9/11 AUMF, which does not impose substantive or procedural criteria on the President.

Opposing the motion was Jennifer Daskal who has previously expressed her concerns about an open-ended use of force authorization that would delegate to the President the authority to unilaterally name the groups with which the nation is at war. Like Sales, Daskal expressed concern about the way the 2001 AUMF was being relied on – through the conception of “associated forces” to justify uses of force against a potentially expanding list of groups, and without transparency as to which groups were – or were not – covered.  Daskal, however, disagreed with Sales on the solution.

For Daskal, any authorisation to use force against terrorist groups should be narrowly tailored for specific groups and specific contexts; it should definitely not be open-ended and it should only occur if there is clear evidence of a threat.

Daskal warned that an open-ended force authorization would encourage – or at least enable – use of force as the first response to terrorist threats.  For Daskal, force should be a last, not a first, resort.  She pointed out the range of other tools – including law enforcement (through prosecution in civilian courts), intelligence-gathering and counterterrorism partnerships with key allies, and strategic initiatives to counter violent extremism – that are available and often effective in countering terrorist threats, and warned that excessive use of force can be counterproductive and increase existing resentment against the United States.

Daskal also stressed the necessity – and in fact obligation – to employ force in situations where these other tools cannot effectively protect against an active and imminent threat to the nation or U.S. nationals, but maintained that the President had ample authority to engage in such uses of force pursuant to his Article II authorities.  And that if and when an organized group – such as is now the case with ISIL – posed the type of threat that the President thought warranted offensive, ongoing uses of force, he could – and should – go to Congress to get authorization to deal with the specific threat.  (In fact, Daskal has been critical of the President for not doing so in this case.) But that the authorization should be focused on the specific threat posed, and ideally come with a sunset clause, so as to avoid it being relied on some 13 years later for purposes totally unimagined when it was first passed.

The difference between Sales and Daskal focused on nature of the threat that could trigger the use of military force and the mechanism for formally embroiling the nation in armed conflict: Sales advocates for an AUMF that would authorise the President to use force against terrorist groups before they have attacked the United States. He argued that the Executive has the advantage over Congress in cases where an attack has not yet occurred because it has better information and can take immediate action. In particular, while he recognised that non-military means can sometimes be effective against terrorism, he considers that the US needs to calibrate the nature of its response for the particular threat and that a more robust exercise of national power is sometimes needed.

For Daskal, the US should not be authorising force against groups absent the determination that this group poses the type of threat that cannot be addressed through other means. And that the authorization should be done pursuant to Congressional deliberation, in response to a specific threat – consistent with what the Framers envisioned when they divided the responsibility to declare and make war between the congressional and executive branches of the government.

All that said, both Sales and Daskal agreed that the President should go to Congress to seek new authorization for his planned actions against ISIL. They just disagreed as to what such an authorization ought to look like. Meanwhile, many others have joined the debate on the blogosphere – raising multiple questions about the President’s legal justifications for the strikes.

Participants in this year’s NBOL workshop also included Professor William Banks, Dr. Daphné Richemond-Barak, Dr. Matthew Levitt, Professor Laurie Blank, Professor Geoffrey Corn, and Colonel (Res.) Ronen Cohen.

An informal vote gave a small majority in favour of the motion. Clearly the debate isn’t over.