After the AUMF: Iraq and al Qaeda

On Tuesday, the Obama administration announced its support for repealing the 2002 authorization to use force in Iraq.  This should not be surprising: after all, the President declared an end to the war there over two years ago.  But what is noteworthy – and instructive – is that it took two years for the administration to support repeal.  (The administration previously objected to a 2011 Congressional effort to sunset the Iraq AUMF in January 2012, saying that it needed open-ended authority to conduct “windup activities.”)  If nothing else, this is a stark reminder of both how hard it is to disentangle oneself from armed conflict, and how loath presidents are to impose restrictions on their own authorities – even in a situation where it is an authority that they have publicly disavowed.

This should serve as an object lesson to those who advocate open-ended, expansive authorities to target offshoots and affiliates of al Qaeda.  As we argue in a paper out today in the Harvard Journal of National Security Law (the product of a debate between us and Bobby Chesney, Ben Wittes, Jack Goldsmith, and Matt Waxman that played out on the pages of Lawfare for several weeks last summer), we should now turn to the 2001 force authorization that undergirds the ongoing conflict with al Qaeda.  We share the concern of Bobby, Ben, Jack, Matt and many other critics  who warn that the 2001 AUMF, which authorized the use of force against those responsible for the September 11 attacks, may be stretched beyond recognition, used to justify lethal attacks against entities that had nothing to do with the September 11 attacks.   (We also note, however, that the extent to which this is in fact a problem is unclear – obscured by the lack of transparency as to what groups are deemed to fall within the AUMF.)  But we disagree on the prescription: Whereas Bobby, Ben, Jack, and Matt argue for a new open-ended AUMF, in which Congress delegates to the President the authority to list groups with which the nation is engaged in armed conflict, we argue that any such future authorizations should be targeted and tailored to deal with a particular threat, and only after public discussion and debate.

To be sure, as we describe in our paper, al Qaeda-inspired groups and affiliates continue to pose grave threats, as the resurgence of al Qaeda in Iraq (or what is now known as Islamic State in Iraq and Greater Syria) demonstrates all too starkly.  But most of these threats are regional, lacking the intent and capacity to attack the homeland, and instead focused on more local struggles for power and control.  At least with Iraq, the administration’s response is not to put boots on the ground or conduct targeted killings from the air, but to quietly and consistently support and guide the Iraqi President’s response – an effort that has yielded at least some recent success with the recapture of Ramadi.   All this is not to say that use of lethal force is never an appropriate response to a terrorist threat; to the contrary, as we point out in our paper, the president has the authority – and arguable obligation – to take lethal actions to protect the nation from serious and imminent threats.  But what we explain in our paper is that there are also a range of other available – and in many cases more effective – tools to combat terrorism and other forms of violent extremism.  Force should be an option, and used when necessary – but as a matter of last, not first, resort.  Open-ended expansions of the 2001 AUMF would dangerously reverse this presumption.

 

  

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About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).

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).