Posted by on June 12, 2013 in Blog
By Isaac Levey
AAI Summer Legal Fellow
On September 14, 2001, three days after the terrorist attacks that killed 2,977 people, Congress passed legislation authorizing the American response. The bill passed the Senate 98-0 at the same time as the House of Representatives approved a similar measure 420-1. The text of the legislation read as follows:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
This resolution, known as the Authorization for the Use of Military Force (AUMF), was signed by President Bush on September 18 and remains in force unchanged today. It has been uniformly read by the courts, as Congress undoubtedly intended, as an exercise of Congress’ power, under Article I, Section 8, Clause 11 of the Constitution, to declare war.
President Bush and President Obama have both relied on the AUMF as the main legal basis for counterterrorism operations since 9/11. It is now almost twelve years old, and has not been changed since it was enacted. As the President acknowledged in his recent speech, the terrorist threat we now face is fundamentally different than the one we experienced on September 11. This requires that we assess the continuing vitality of the AUMF, whether it still applies, and whether and how it should be changed, updated, or eliminated.
What the AUMF Is
By its text, the resolution authorizes the use of military force against any actor (‘nation, organization, or person’) which the President determines played a part in the 9/11 attacks, or “harbored” those actors. It does not seem to allow military force simply to punish or avenge 9/11; military force is only authorized “in order to prevent any future acts of international terrorism against the United States.” Presumably, “acts of terrorism against the United States” doesn’t just mean attacks on the homeland, and force is also authorized to prevent attacks against American military or diplomatic personnel, or our other interests located outside the country. Thus, in order to target a person under the AUMF, the President must determine that the target falls into at least one of the following categories: (a) s/he personally played a role in 9/11, (b) s/he is a member of an organization that played a role in 9/11, (c) s/he personally harbored a person or organization that played a role in 9/11, or (d) s/he is a member of an organization that harbored a person or organization that played a role in 9/11. The President must also determine that targeting them would prevent future acts of terrorism against the United States.
Accordingly, the AUMF clearly covers al-Qaeda, the “organization” that carried out 9/11, and any member of that organization. It also covers the Taliban, which “harbored” al-Qaeda in Afghanistan, and any member of the Taliban. Since it has the legal effect of a declaration of war, it allows the President and Congress to use their war powers in counterterrorism operations. Both historically and today, war powers may include actually commanding military operations, both at home and abroad; the military detention of enemy combatants without trial; the trial and punishment of enemy combatants for war crimes by military commission; and at times, the use of lethal force in the defense of the nation. The Supreme Court has said it doesn’t violate the Constitution to subject an American citizen who fights with an enemy force to these measures. In Hamdi v. Rumsfeld (2004), the Court said the AUMF allowed the military to detain an American citizen who was captured fighting for the Taliban for the duration of the war; in Ex parte Quirin (1942), they upheld the military trial and punishment of Nazi spies captured in the U.S., one of whom was a U.S. citizen. These individuals, the Court said, were enemy combatants and could be treated as such. On the other hand, a U.S. citizen cannot be subject to these war powers unless he has some connection to a military force. The Court ruled in Ex parte Milligan (1866) that a spy for the Confederacy in the Civil War who was not a member of the Confederate army and had always been a civilian could only be tried for his crimes in the ordinary criminal justice system, and this principle has been reaffirmed many times since. On the basis of this understanding, the Obama Administration has argued that in certain circumstances, the President has authority to order the use of lethal force against an American citizen overseas, without affording him any sort of due process. Without going fully into this debate now, it’s easy to understand that an American citizen who is a member of the core al-Qaeda organization, which actually carried out 9/11, is an enemy combatant under these decisions, and the same standard would apply to an American fighting with the Taliban.
In sum, the AUMF authorizes these measures against members of al-Qaeda core and the Taliban, and they may be lawful and constitutional whether the combatant is an American citizen or not. There also is no geographic limit in the text; it appears to authorize the use of force anywhere, or at least anywhere outside the United States, against a person it covers. The AUMF is thus (at the very least) a broad grant of authority to the President to wage war on the people and groups that attacked us on September 11, or provided them safe harbor.
What the AUMF Isn’t
However, this broad authority is not unlimited. In Hamdan v. Rumsfeld (2006), for instance, the Supreme Court rejected the argument that it allowed the President to use military commissions to try members of al-Qaeda for war crimes. And while the war with al-Qaeda has never been a conventional, state-against-state war, with armies wearing uniforms and ending when both sides sign an armistice or peace treaty, it does seem clear that the AUMF is not a blank check to use military force against anti-American terrorism whenever it occurs. Its precise limits have never been tested in the courts, but everyone agrees that it requires at least some connection between the target and al-Qaeda or the Taliban (neither President Bush nor President Obama ever argued otherwise). Simply holding a generally similar worldview to al-Qaeda is not enough – nor would it extend to someone who claimed to be inspired by those groups but had no actual association with them. Indeed, if there is any limit to Congress’ constitutional power to declare war, it might be that an ideology, by itself, cannot be a belligerent enemy force. Otherwise, Congress could simply declare “war on federal crime,” declare that all criminals were dedicated to the ideology of crime, and treat them all as enemy combatants or war criminals.
In other words, the AUMF is not, as some have claimed, an authorization to use force against all violent extremists, or a declaration of war against “radical Islam.” Accordingly, the Obama Administration was correct that it couldn’t legally treat Dzhokhar Tsarnaev, the (alleged) Boston Marathon bomber, as an enemy combatant upon his arrest. Neither he, nor his brother Tamerlan, nor the bombings, had any apparent connection to al-Qaeda, the Taliban, or any other forces associated with them. If we imagine a continuum of terrorists based on whether they are covered by the AUMF, al-Qaeda core and the Taliban are at one obvious end; “lone wolves” like the Tsarnaev brothers fall at the other.
The AUMF Now: the “Associated Forces” Dilemma
The problems that have arisen with the AUMF are partially the result of how successful the operations under it have been. The core of al-Qaeda, the organization that was actually responsible for the 9/11 attacks, has been systematically taken apart by American military efforts. The organization’s hierarchy is shattered, and many of its top leaders, including Osama bin Laden and Khalid Sheikh Mohammed (who actively planned and oversaw the 9/11 operation) have been captured or killed. Al-Qaeda has essentially become a franchise, whose mantle is now adopted by groups such as al-Qaeda in Iraq (AQI), al-Qaeda in the Islamic Maghreb (AQIM), and perhaps most dangerously, al-Qaeda in the Arabian Peninsula (AQAP). These groups are dangerous, both to the U.S. and our allies, but no serious observer believes they are close to being capable of carrying out another attack on the scale of 9/11, against the United States or anyone else. The Taliban, the group which harbored al-Qaeda in Afghanistan, exists both there and in Pakistan, but it now poses far more of a threat to those governments, and perhaps American interests abroad, than to the United States homeland.
Rather, as the President said in his speech, the threat we face now is diffuse and disorganized. These changes reduce the threat of spectacular, massive attacks, but less regimented organizations are also harder to find, infiltrate, and interdict. From abroad, we will face localized threats such as the attack on our consulate in Benghazi, or the BP oil facility in Algeria; and occasional attempts that do hit closer to home, such as the attempted bombing of an airplane on Christmas Day 2009, thought to be carried out by AQAP. We also face homegrown domestic terrorism, which can include Americans encouraged to commit violent acts by members of these groups (such as Maj. Nidal Hassan, who was in communication with AQAP before committing a mass shooting at Fort Hood), but is sometimes carried out by individuals with radical political agendas they form on their own, with virtually no coordination with anyone else beyond sharing their views online. Recent “lone wolf” homegrown terrorists of this type include Scott Roeder, who murdered a doctor in Kansas who performed abortions; Wade Michael Page, who massacred worshipers at a Sikh temple in Wisconsin; and of course, Tamerlan and Dzhokhar Tsarnaev.
It does not diminish the real threat these actors present to say that Congress probably didn’t have them in mind when it passed the AUMF. After all, none of the spinoff groups described above existed when the AUMF was passed. On the other hand, every court that has interpreted the legislation, including the Supreme Court in Hamdi, accepted the government’s argument that the war powers authorized under it extend to, at the very least, violent groups that represent “associated forces” vis a vis. al-Qaeda or the Taliban. The scope of this phrase is the subject of significant debate in the courts, but the government argues that it applies, at least, to groups like AQI, AQAP, AQIM, and more recently, the al-Nusra Front in Syria, because these groups have pledged allegiance to al-Qaeda and claim to be part of al-Qaeda. At a recent congressional hearing, Pentagon officials asserted that the authorization might allow military intervention in Syria against al-Nusra, or anywhere a force ‘associated’ with al-Qaeda or the Taliban became a threat (including, possibly, in the United States). That was too much for even Sen. John McCain (R-Ariz.), but the AUMF is quite broad, and it makes no reference to where the force allowed may be used. As long as this language is still in effect, the President will keep assuming they have wide latitude to act under it. And especially in an area where the Constitution grants so much power to the President, as it does in military affairs during wartime, the courts are very reluctant to limit the exercise of that power. It requires Congress, speaking loudly and clearly, to write such a limit into the law.
What Should Congress Do?
It follows, then, that the AUMF is desperately in need of an update. Perhaps the most surprising element of the President’s speech was acknowledging this reality; he invited Congress to place restraints on the broad authority they’ve given him, and threatened to veto any attempt to expand that authority. He wants Congress, in his words, “to refine, and ultimately repeal, the AUMF’s mandate.”
It is hard to think of a serious argument against this proposal. Whether or not one agrees with President Obama’s assessment of the current terror threat, or his desire to see this war end, no one can dispute that it has become a very different war than when Congress declared it after 9/11. As even Senator McCain admits, “the conditions that prevailed, that motivated the United States Congress to pass the [AUMF] in 2001” no longer exist, and that alone should justify amending the law to address the new situation. To the extent the terror threat remains significant, the President should have access to the tools he needs to fight it in its new form, but otherwise, the vast authority the AUMF grants needs to be cut back. The House of Representatives will soon consider the National Defense Authorization Act, Fiscal Year 2014 (NDAA 14), which is the main appropriation and authorization for the Department of Defense. Rep. Adam Schiff introduced an amendment yesterday that provides a sunset date on which the AUMF’s authority will expire. The proposal sets the AUMF to expire on December 31, 2014, when the drawdown from Afghanistan is complete. It urges the President to “work with the legislative branch to secure whatever new authorities may be required to meet the threat and comply with the Constitution,” but provides no ideas as to what those might be.
There are various possibilities of how to frame the President’s authority to fight terrorism going forward, and all have advantages and disadvantages. The complete elimination of the AUMF, while it seems simple, could very well prove problematic. The United States would almost certainly continue its efforts against terrorism worldwide – there will always be those who wish and plan to do us harm – but in the absence of any formalized authority or structure, the President (and his lawyers) would have to rely on his own constitutional powers, resulting in far more troubling arguments about wartime executive authority than any President Obama, at least, has made to date. And the lack of military authorization for counterterrorism operations might lead the President to rely even more heavily on the CIA and other intelligence methods, something Obama wishes to move away from.
Congress, then, needs to create a comprehensive framework granting the President specific powers to use against our enemies. These measures would codify, in clear and precise terms, the permissible targets of military or covert counterterrorism operations. They would explain which terrorists may be treated like enemy combatants, and which must go through the normal, civilian, criminal law enforcement process (which is quite effective by itself). Congress should create procedures the Executive Branch needs to follow in order to ensure that any person who is targeted meets the criteria Congress requires for the use of war powers. The process should include oversight outside the Executive Branch. This could involve reporting all actions to Congress (or selected members of Congress), and a sunset provision could accompany the powers granted so that Congress can decide whether to continue granting them as it becomes clear whether or not they are necessary and being properly used. Another possibility, albeit one that might raise other constitutional concerns, is the creation of a special court or agency to oversee these operations. Rep. John Conyers (D-MI), for example, has authored an amendment to the NDAA that would require the Pentagon to precisely define which groups are deemed to be “associated forces” subject to the AUMF.
In the immediate aftermath of the single deadliest attack the continental United States had seen in almost 150 years, Congress responded with a declaration of total war. It has not been quick – largely because we forgot about al-Qaeda for three or four years during our disastrous war with Iraq – but the actual organization that attacked us on September 11, 2001 is no longer a serious threat to the American homeland. We do have enemies, but in order to keep us safe, it is no longer necessary to allow the President to use the full power of the American military against them.
Someone (like me) who generally approves of the way President Obama has used his war powers under the AUMF might not be troubled, at first, by letting him keep them. But the entire structure of American government is rooted in the fundamental notion that separation of powers is the best defense against governmental overreach. Whatever one thinks of this President, the frightening actions that his predecessor used the AUMF to justify, including torture, racial profiling, and vast illegal warrantless surveillance, show why these powers shouldn’t be granted if they’re not absolutely necessary. Even the strongest defenders of the drone program, in the President’s Justice Department, could not deny “the extraordinary seriousness of a lethal operation by the United States against a U.S. citizen.” James Madison spoke from a deep reading in history when he said, “No nation can preserve its freedom in the midst of continual warfare,” and the President was right that his warning is just as relevant today as it was at the nation’s founding.
These are complicated and delicate questions. Congress, doubtless afraid of being called unpatriotic and soft on defense, has not passed legislation designed to seriously limit or oversee the exercise of executive authority in national security in thirty-five years. But the President has now acknowledged that they should, and while a comprehensive statutory framework to govern counterterrorism operations in the twenty-first century may be too much to hope for, a fix for the AUMF is at least a good place to start.comments powered by Disqus