Overreading Lisa Monaco on AUMF Reform

Over at Lawfare, Bobby Chesney, Jack Goldsmith, Matt Waxman, and Ben Wittes have posted a reaction to a Josh Gerstein story in Politico, which was itself reporting on remarks that Homeland Security Advisor Lisa Monaco made on Saturday at a conference in Aspen. The gist of Josh’s story is that Monaco “suggested Saturday that Congress pass new legislation to support President Barack Obama’s authority to act against an array of terrorist groups not clearly linked to the September 11 attacks.” And the gist of the Lawfare post, which takes Josh’s story well past its facts, is that “Mo[n]aco’s statement, if we’re understanding it correctly, seems to represent a shift from the White House’s prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.”

Respectfully, I think both Josh and my Lawfare colleagues are dramatically overreading an unscripted response to an unscripted question about what will happen to detention authority under the 2001 Authorization for the Use of Military Force if and when combat troops are withdrawn from Afghanistan (see the video from around 45:00-48:00). Whereas Josh’s article and the Lawfare post see in Monaco’s response the deliberate endorsement of a more expansive AUMF (which allows the Lawfare crew to plug their Hoover Institution white paper on how such a forward-looking use-of-force authorization ought to be crafted–notwithstanding Jen Daskal and my rather scathing critique thereof), my own reaction to Saturday’s comments is that Monaco was hedging. That is, her answer suggests that, contra the Lawfare post, the President is still committed to the promise to repeal or refine the AUMF from last May’s speech at the National Defense University, but he doesn’t want to forswear the possibility that some new statutory authorities might be necessary at some point in the future depending upon the specific nature of the threat posed by specific groups with increasingly less of a connection to 9/11–who, rightly, should be seen as falling outside the ambit of the 2001 AUMF. That’s not a shift in policy; that’s just a candid concession that we don’t know what we don’t know. The Hoover paper was premised on the notion that Congress should therefore provide forward-looking authority today that the President can trigger if and when such a situation arises in the future; the principal objection Jen and I offered was that nothing can or would stop Congress from providing a more specific and carefully circumscribed authorization if and when it is needed.

Here’s Monaco’s most important quote, in my view: “What the president said at NDU was that he wanted to refine and ultimately repeal that authority. It does not mean, however, that we wouldn’t want to seek a narrowed, potentially narrowed version of that to allow us to go after and address emerging terrorist threats that may not come under this current 2001 authority.” 

It’s certainly true that the Administration has not been nearly as aggressive in seeking to refine or repeal the AUMF as I had thought the NDU speech had hinted it would be. But if Monaco’s unscripted answer was supposed to represent a shift in Administration policy toward near-term endorsement of a more open-ended, forward-looking use-of-force authority along the lines Josh’s story suggests (and the Lawfare post all-but endorses), I just don’t see it. 

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Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).