A New Debate over a New Open-Ended War

When talking about the future of counterterrorism and war, four letters seem to be on everyone’s lips in Washington these days: AUMF.

Last week, Politico reported that legislators have been debating whether to revise the Authorization for the Use of Military Force (AUMF), enacted in 2001, which gives the president the authority to use force against those people or organizations who attacked the United States on September 11, which the government has interpreted as al Qaeda and the Taliban, and their “associated forces.” Just what “associated forces” means, and who falls into this category, is unclear.

Passed in the days after 9/11, the AUMF remains one of the stated legal justifications for everything from the war in Afghanistan to targeted killings in places like Yemen. But as the war in Afghanistan winds down, and the core al Qaeda group weakens, the AUMF may no longer be useful or applicable.

Some, like the authors of a Hoover Institute paper called “A Statutory Framework for Next-Generation Terrorist Threats,” want a new, expanded AUMF to address threats from groups outside the scope of the 2001 Authorization. They believe that this is the best way to respond to emerging terrorist threats: an open-ended authorization to use military force against any group  the president deems a threat to the United States.

But others, like Steve Vladeck and Jennifer Daskal, disagree. Writing for the legal blog Lawfare, Vladeck and Daskal point out that once the war in Afghanistan ends, the United States will no longer be involved in an armed conflict with the Taliban, core al Qaeda, or their affiliates. “One would think, then,” they write, “that this is hardly a propitious time to begin discussing an expansion of statutory authorities to use military force,” adding, “[W]e fear that the sweeping and preemptive militarization of counterterrorism for which they argue is not just unnecessary on current facts, but also deeply misguided—and likely counterproductive—as a matter of policy and prudence.”

Former Obama staffers are also skeptical about a new AUMF and a never-ending war.

Former Defense Department advisor Rosa Brooks points out that the Obama administration has used the AUMF as the justification for targeted killing of suspected terrorists outside the traditional battlefield, but that an “AUMF 2.0” is a bad idea and “An expanded AUMF is also unnecessary. Even if Congress simply repealed the 2001 AUMF (as the New York Times editorial board urges) instead of revising it, the president already has all the legal authority he needs to keep the nation safe.”

Jeh Johnson, former Defense Department counsel, described a “tipping point,” when “so many of the leaders and operatives of al Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.”

And Harold Koh, former State Department counsel, said in a speech at the Oxford Union, “First and most important, our overriding goal should be to end this Forever War, not to engage in a perpetual ‘global war on terror,’ without geographic or temporal limits.”

Even in his inaugural address in 2013, President Obama stated, “A decade of war is now ending … We, the people, still believe that enduring security and lasting peace do not require perpetual war.” The president also declined a new AUMF when Congress tried to insert it into the annual national defense spending bill last year, writing that he didn’t need a new AUMF to carry out counterterrorism operations.

Those in government should have a very serious conversation about whether we need the current AUMF, and whether the president should have the power to commit the United States to a never-ending war.

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Published on May 14, 2013

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