Originally published on JustSecurity.org on May 23, 2014.
May 23, 2014 marked the one-year anniversary of President Obama’s important speech at the National Defense University (NDU) setting forth his proposed framework for post-9/11 counterterrorism strategy. The President’s historic move in that speech was to call for the eventual repeal of the 2001 Authorization for the Use of Military Force (AUMF) and the end of what I had called at the Oxford Union the “Forever War.” The President cogently summarized why we should reject indefinite war in favor of an “exit strategy” to bring this protracted conflict with Al Qaeda, like all wars, to an end. Last October, I argued that despite public skepticism, without fanfare, President Obama has made slow but steady progress toward achieving three key elements of his effort to end the Forever War: (1) disengaging from Afghanistan; (2) closing Guantanamo; and (3) disciplining drones.
The latest moment to assess progress in ending the Forever War came on May 21 this year, when as others have noted (see Goldsmith posts here and here; Lederman post here; Human Rights First video here), the Senate Foreign Relations Committee heard testimony from four current and past government lawyers regarding the authorization for use of military force after Iraq and Afghanistan (video): Mary McLeod, Principal Deputy Legal Adviser, U.S. Department of State; Stephen Preston, General Counsel, U.S. Department of Defense; myself (Harold Hongju Koh); and Michael B. Mukasey, Debevoise & Plimpton, former U.S. Attorney General. Putting aside some aggressive questioning, there was far more agreement among all participants than may come through from reading the statements or watching the hearing. I would take away five basic messages.
First, we should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations. We should not use a broadly worded 13-year old AUMF text drafted for a prior situation to conduct perpetual armed conflict against a mutating group of terrorist networks.
Second, at the right moment, AUMF repeal would leave no legal gaps. If Al Qaeda can be defeated on the ground, there will come a time when the President will no longer need AUMF authority, because the remnants of Al Qaeda will be better represented by the idea of a “continuing and imminent threat” to which the United States could respond with self-defense authorities than an organized armed group engaged in ongoing conflict of a particular intensity and duration. Only the latter characterization warrants treating the members of Al Qaeda as continual belligerent combatants with whom we remain in daily war. The President would then not need the current breadth of AUMF authority to deal with that group of individuals, because they can be dealt with through other law, particularly as threats who can be addressed by the domestic and international law of self-defense, not as an organized armed group with whom we remain in daily struggle. Read the rest of this entry…