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. (In my oral remarks I used the image of “belt and suspenders” – if the “suspenders” of self-defense law are sufficient to address the targeting and detention issues that remain, you could remove the “belt” of the AUMF without creating a gap in legal authority).
Third, with regard to detention, as I argued in my testimony, repealing the AUMF need not create any “legal gap” in detaining and trying future terrorist detainees in either American courts or elsewhere. While ending the conflict with Al Qaeda would affect U.S. legal authority to detain individuals on Guantanamo as belligerent combatants, other detention authorities under, for example, the criminal and immigration laws would continue. Nor should we consider detention the only solution when the Administration’s primary tools to clear Guantanamo are transfer, criminal prosecution by the U.S. and other states, and military commission prosecutions. While some have expressed concern over so-called “unreleasable” prisoners still at Guantanamo, the Executive branch report submitted last week under the terms of the National Defense Authorization Act suggest a number of ways –with some of which I disagree—by which that problem could potentially be managed.
Fourth, what kind of post-repeal legal framework for counterterrorism should we have? Should we shift from the statutory framework of the AUMF, which has now been clarified by both executive branch and judicial interpretation, back to an Article II constitutional framework, guided solely by classified Presidential Policy Guidance? That would be legally possible, but would make uncomfortable all of us who urged throughout the last administration that we move away from broad assertions of Article II authority to a statutory framework based on shared responsibility between the legislative and executive branches for national security matters. Famously, in Category I of Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer (here), the President’s “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Both legal authority and political legitimacy would be maximized if Congress and the President could work together to ensure that the authority given to the President reflects the current threat facing the U.S., not the threat that existed on 9/11. Of course, that leaves a grave political problem: given the dysfunctionality of our legislative process and the reality that Congress and the executive branch have been out of sync on these issues for many years.
Fifth, this political reality creates three options for Congress going forward: one bad and two better. The bad option would be to pass new, broad legislation out of an understandable sense of bipartisan frustration with the apparent mismatch between the intention of the 2001 AUMF and the threats that the United States is actually facing today. If the timing isn’t right—because of the evolving nature of the threat posed by non-state terrorists, because of the uncertainty surrounding the planned withdrawal of U.S. troops from Afghanistan by the end of this year, because Congress cannot come to a consensus on the best way forward—then no new legislation is better than bad new legislation. Bad legislation would expand the President’s current authority over his objection, and codify the “Forever War.” Such an option seems flatly contrary to President Obama’s unambiguous statement in the NDU speech one year ago that he would not sign any law expanding the mandate of the 2001 AUMF (here). Moreover, such an expansion would be both unprecedented and extremely unwise. After more than three decades of studying and teaching the law of U.S. foreign policy, I know of no example in our long constitutional history where the Congress—traditionally the branch that seeks to end wars—has enacted a law expressly to expand a war over the President’s explicit objection. Now is not the time to start.
But if the time were right, Congress would have two better options, more consistent with President Obama’s stated objective in his NDU speech to “refine, and ultimately repeal, the AUMF’s mandate.” The first option is “wait then repeal:” if and when conditions on the ground permit, Congress could simply repeal the 2001 AUMF. Even without an AUMF, the President would have ample authority to address current and future threats by relying on his inherent Article II authority as Commander-in-Chief to strike terrorists who pose a “continuing and imminent threat” to the U.S. But until then, the status quo is better than new legislation perpetuating and expanding armed conflict authorities that the President has not asked for. But if “wait then repeal” is the only option, repeal may never come. For as already noted, some members of Congress and the public are wary about forcing the President to rely on his Article II powers alone without congressional authorization or oversight.
So the third option is “narrow, then repeal.” Congress could narrow the AUMF’s mandate to recognize the evolving nature of the threat facing the U.S., and start the process of shifting legal authority from an “armed conflict” theory to a “current threat” theory. In my testimony, I suggested five possible elements of a narrowing statute:
- A sunset clause, which would provide increased opportunities for congressional and executive dialogue and force debate and voting at timed intervals;
- Statutory codification of the President’s authority to act in self-defense consistent with both the Constitution and international law;
- Strengthened congressional reporting requirements to require that the relevant committees regularly receive information on secret military and covert operations—to the extent permitted by operational security needs—including requiring that Congress be informed as to which groups are covered under the AUMF and in which nations the Department of Defense believes Congress has authorized the President to use military force;
- Strengthened public reporting requirements, which would require periodic public reporting on the number of combatants and civilians killed, as well as information regarding where and against whom the President is using military force under congressional authorization; and
- Exploration and eventual implementation of some form of ex post review mechanism—judicial or otherwise—for evaluating targeting, particularly with respect to American citizens.
To be clear, I would not favor two proposals offered by former Attorney General Mukasey in his testimony, which I would see as expanding, not narrowing, the AUMF’s mandate. His first proposal is a ten-year sunset clause. But do we really want to sanction ex ante a 23-year armed conflict? His second proposal echoed a Hoover Institution recommendation that Congress set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch to identify particular groups that are covered by that authorization of force, drawing on the State Department’s Foreign Terrorist Organization designation process. Under this process, Congress charges the Secretary of State—pursuant to specific statutory standards, in consultation with other departments, and following a notification period to Congress—to designate particular groups as terrorist organizations and thereby create statutory consequences for those groups and their members.
For nearly four years as Legal Adviser, I engaged regularly with the FTO designation process, which I do not believe is a good one. Pretty much everyone I worked with in the executive branch thought it was a buck-passing, list-making exercise that should not be replicated elsewhere. Congress adopts a standard for generating lists that, through the vagaries of the legislative process, is hard to construe. It then delegates to the executive the responsibility to make and tier lists with various sanctions attached to the various tiers. The incentive created for everyone in the process is to be over-inclusive: you only get into trouble if a terrorist group that is involved in a strike was not on the list. But sometimes the friendly government of the country where the group operates opposes the designation on the ground that recognition through FTO designation by a country the size and stature of the United States would give that organization the very visibility and status they seek, perversely strengthening the terrorist organization by helping with recruiting, raising resources, and the like. These designations are hard to change, forcing the executive to try to carve out exceptions from the sanctions when the inflexibility of the process bites in unanticipated ways: witness, for example, the struggle to lift the FTO designation for the African National Congress when it meant denying visas for Nelson Mandela (story here). So the FTO Designation proposal strikes me as an unwise one, which would not foster meaningful congressional engagement or oversight, but would instead expand and perpetuate, not help narrow and eventually end, the Forever War. If the President ever needed additional authority – because of a situation that turned from one requiring self-defense in response to an immediate threat into one that genuinely demanded an ongoing conflict with a new armed group that threatened our nation – the solution would be to ask Congress at that time. The straightforward step would be for him or her simply to ask Congress to authorize military force against that group, making the case for why a new AUMF is needed, and getting the requisite authority from Congress at that time.
Stepping back from the details, the broader message is this: one year after the NDU speech, it still seems possible for President Obama to reach his stated goal of “refining and ultimately repealing” the 2001 AUMF. Like much these days, the problem is not the law—it is the politics. No new legislation is better than bad new legislation. So our strategy should be either “wait then repeal” or “narrow then repeal,” while keeping our eyes on the prize: finally ending America’s Forever War.