As loathe as I am to call any attention to Eric Posner’s latest over on Slate, his piece engaging the Jeh Johnson speech (about the notion that the Al Qaeda that attacked us on 9/11 might someday be defeated) is such a blast from the past it’s hard to resist. Turns out the President has really been detaining everyone under his Article II power all along; that “ordinary law enforcement” is useless against terrorism (guess someone forgot to tell the FBI and its 300-some indictments related to jihadist terror or national security charges since 2001); and that one of two key world changes in recent years that has made terrorism so much more dangerous is terrorists’ ability to miniaturize weapons (but see footnote 50 here). Plus ca change.
For now, let’s focus on the key point of Johnson’s speech: the suggestion that the effective dismantlement of core Al Qaeda might someday mean the AUMF no longer authorizes the President to continue detaining people on the grounds that we are in a conflict with Al Qaeda. Eric begins explaining the debate as follows: “[As civil libertarians wearing 'rose colored glasses' would have it,] [t]he AUMF triggered the president’s commander-in-chief power, which enables him to detain enemy combatants indefinitely and kill them with drones and other weapons….”
As an initial matter, hard to figure out what Eric means, “the AUMF triggered” the President’s Commander-in-Chief power. The President is CINC in wartime and not, and whatever powers Article II of the Constitution provides him (more on which anon) I figure they’d exist whether Congress “triggers” them or not. More to the point, it would be a lot easier just to describe the Jeh Johnson argument – the position taken not only by Jeh, but by the President, the Congress, and the federal courts – as what it actually is, namely, that the AUMF is the source of authority for at least a substantial chunk of the detention and targeting we’ve been doing (and certainly for the detentions at Gitmo).
In any case, the AUMF is I guess mostly beside Eric’s point. As he continues: “[E]ven if al-Qaida and its affiliates are destroyed, it will make little difference for the president’s authority to use military force against future terrorist threats. The president will retain his authority under the Constitution, Article 2 of which has been interpreted to give the president the power to use military force against security threats even in the absence of congressional authorization.”
Well, it’s true no doubt the President has some constitutional powers of national self-defense; indeed, the UN Charter (among treaties the U.S. has ratified) has a few things to say about states’ inherent right to repel such threats, provided they are, among other things, imminent. But I’m not sure I’ve ever heard quite so sweeping a description of the President’s use-of-force Article II power before – a power that lets the President do whatever he wants “against security threats” writ large? There is no support in domestic law for the proposition that the President has the power to use force against anything he deems a “security threat” anytime without authorization, and negative support in international law for the proposition that such a use of force (without, for example, a requirement of imminence) is lawful. (Harder still to see how such a power to repel imminent threats could support a decade-long detention program, for example, without congressional authorization. Anyway, again, I kinda thought we’d settled that.)
But one could easily get distracted addressing all the sweeping assertions about legal doctrine and security reality and miss the broader point. Namely, Eric thinks the ever-changing problem of terrorism is here to stay. With this, I agree. Don’t think I know anyone who thinks otherwise. But most folks – the General Counsel for the Secretary of Defense, among others – also think that the President’s powers to address the threat do and should have limits (statutory and otherwise) as a matter of law. So the question I took Jeh to be asking is what happens when, as will someday be the case, the particular terrorist group that attacked us on September 11 – to which one of those authorizations is, by its terms, tied – is effectively no more? What security policy best serves our interests in minimizing the forever kind of threat then? Knowing that our laws and practices influence the behavior of allies and enemies around the world, what powers do we want the U.S. government to have long term?
Here, too, hard at first to tell whether Eric’s response is more about security policy or statutory interpretation. He writes: “[A]lthough Johnson notes that the ‘core’ of al-Qaida has suffered a significant lashing, its affiliates are alive and well, especially in the Middle East, where they appear to be flourishing. The AUMF identifies the affiliates of al-Qaida as the enemy, as well as al-Qaida itself. As long as those affiliates remain in existence, the United States will be at war with them. And because ‘al-Qaida’ has become a kind of brand that any group can lay claim to, al-Qaida affiliates will be around as long as radical Islam is.”
I tend to doubt Eric means this mostly as statutory interpretation, given his view that the AUMF doesn’t much matter for purposes of the President’s power anyway, and given that as a matter of interpretation, the courts have already held the AUMF authorization extends to “associated forces” (as informed by international law), not “affiliates,” whatever that means. There’s also the not insubstantial conceptual problem of fitting terrorist groups into the kind of unified hub and spoke-type organization the AUMF (and international law) would seem to contemplate where the hub no longer exists. (The white petals of a daisy fall to the ground in disarray if the flower loses its yellow core.) It is also facile (and as best I can tell sometimes wrong) to imagine that just because another group of radicals has claimed the franchise name “al Qaeda” they in fact have any association with the al Qaeda that attacked us on September 11. (Just because I set up a coffee stand and hang up a shingle saying “Starbucks” doesn’t mean I have any affiliation with Starbucks. Indeed, sometimes it’s quite the contrary.) None of this is for a moment to suggest that all danger disappears along with ‘core’ Al Qaeda. It is only to point out that it is difficult to understand an idea of “associated forces” if there is no longer an extant group they are associated with.
So let’s set the law aside for a moment and take Eric’s point for what I think he means it to be – one of security policy. A policy that says, in essence, whatever and wherever the “radical Islamist” threat du jour, the best (only?) way of dealing with them is to call them all al Qaeda and target and detain them henceforth and forever. This would certainly be one way to answer the policy question. But Eric’s essay offers scant support for concluding it’s the right one. Meantime, security policy experts like (Iraq counterinsurgency guru) David Kilcullen have argued forcefully that lumping together relatively disparate terrorist groups is exactly the opposite of what would be effective if one’s goal were to undermine local insurgents’ potentially more far-reaching goals.
What Jeh’s speech very usefully opened is the possibility that it is time to design a post-crisis, post-emergency, post-war counterterrorism strategy going forward. One that is smarter than the ad hoc response we cobbled together in a hurry a decade ago, that takes account of lessons learned, and that has built in at its core (to use a word) a commitment to operating within a system of law. That is, a policy that includes law and legal constraints at the outset, but doesn’t let legal wrangling obscure the need for starting with a strategic goal.