A Last Word on Lisa Monaco and AUMF Reform

In light of various offline comments, and Ben’s latest Lawfare post, let me briefly elaborate upon my post from this morning with respect to Saturday’s remarks by Lisa Monaco and the ongoing debate over AUMF reform. To my mind, folks are misreading Monaco’s comments because they are conflating three very different questions:

  1. What, if anything, is going to happen to the September 2001 AUMF?
  2. What additional (“extra-AUMF”) statutory authorities, if any, will the President seek for groups not covered by the 2001 AUMF (e.g., ISIS)?
  3. What powers does the President believe he has in the absence of any statutory authorization?

I didn’t see anything in Lisa’s comments—including her response to Raha—that suggested that the Administration has changed its view since at all with respect to questions (1) or (3) since the President’s May 2013 speech at the National Defense University. They are still seeking to refine or repeal the AUMF in light of the changed nature of the threat posed by al Qaeda and the Taliban; and they still believe that the President has at least some authority to use military force in the absence of any statute.

The million-dollar question is (2). And although Congress may address (2) in the same bill that addresses (1), we would all do well to keep these questions distinct. Thus, if what Lisa was saying was, in fact, about authority to go after groups clearly outside the scope of the AUMF (again, think ISIS), I think that only underscores the conclusion that there’s nothing new here. The Administration has never said it wouldn’t go to Congress if and when the need for extra-AUMF authority came along; it’s just resisted the notion that we’re there yet. And the whole point of the fight between Jen Daskal & me, on the one hand, and the Lawfare crew, on the other, is whether Congress should provide such forward-looking authority against groups with no connection to September 11 before they’re actually needed. The Hoover paper says yes; Jen and I rather emphatically say no. If the Administration does eventually seek a limited, group-specific use-of-force authorization against a group not covered by the 2001 AUMF, that only vindicates what Jen and I argued for in our paper–contra the broad and open-ended proposal at the core of the Hoover paper.

Of course, only folks inside the Administration can say for sure whether a shift in policy is nigh. But it would behoove all of us to be clear on what the current policy actually is before we can assess whether unscripted remarks to an unscripted question portend a shift thereof. 

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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).