Reauthorizing the 'War on Terror': The Legal and Policy Implications of the AUMF's Coming Obsolescence

Author:Beau D. Barnes
Position:J.D., Boston University School of Law (expected May 2013)
Pages:57-114
 
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2012] REAUTHORIZING THE “WAR ON TERROR” 57
REAUTHORIZING THE “WAR ON TERROR”:
THE LEGAL AND POLICY IMPLICATIONS OF THE AUMF’S
COMING OBSOLESCENCE
BEAU D. BARNES
I. Introduction—Ten Years After 9/11, Whither the War on Terror?
Ten years after the terrorist attacks of September 11, 2001, the
United States is reassessing its struggle against terrorism. The armed
conflict against terrorist groups,1 which most consider to have begun in
the fall of 2001 with the September 11 attacks and the subsequent
invasion of Afghanistan to depose the Taliban regime, has spread to
multiple locations throughout the world.2 Mirroring the geographic
J.D., Boston University School of Law (expected May 2013); M.A. in Law and
Diplomacy (expected May 2013), The Fletcher School of Law and Diplomacy at Tufts
University; B.A., 2006, Lewis & Clark College. I thank Major Andrew D. Gillman (U.S.
Air Force) of The Judge Advocate General’s Legal Center and School, Charlottesville,
Virginia, for thoughtful and comprehensive feedback on the weak points of an earlier
draft, Professor Robert Sloane of Boston University School of Law for solid advice
during this article’s early days, and my joint-degree colleague Elizabeth Rossi for
excellent suggestions and thorough editing. The editors of the Military Law Review
provided superb editorial assistance. Allison Shean, as always, provided boundless
support and encouragement throughout this endeavor.
1 The debate on what label should be used for the armed conflict authorized by the
Authorization for Use of Military Force (AUMF)—War on Terror, Global War on
Terrorism, GWOT, or The Long War—is an important one, but not one that I will engage
in this article. See generally Herbert W. Simons, From Post-9/11 Melodrama to
Quagmire in Iraq: A Rhetorical History, 10 RHETORIC & PUB. AFF. 183, 184 (2007)
(arguing that rhetorical analysis “helps explain why” after 9/11 “the administration chose
to evade the hard questions of motivation for the attacks and to respond instead with a
sanitized, melodramatic framing of the crisis, coupled with the launch of a vaguely
defined, seemingly unlimited ‘war on terror’”). It suffices for this article’s purpose that
the U.S. Supreme Court has recognized that there exists a “conflict with al Qaeda” that is
separate from the conflict with the Taliban, and that the former implicates the AUMF.
Hamdan v. Rumsfeld, 548 U.S. 557, 628–29 (2006) (“Hamdan was captured and detained
incident to the conflict with al Qaeda and not the conflict with the Taliban. . . .”)
(emphasis added); see also Jack Goldsmith, Long-Term Terrorist Detention and a U.S.
National Security Court, in LEGISLATING THE WAR ON TERROR: AN AGENDA FOR REFORM
75, 77 (Benjamin Wittes ed., 2009) (“[E]very branch of the U.S. government today
agrees that the nation is in an ‘armed conflict’ (the modern legal term for ‘war’) with al
Qaeda, its affiliates, and other Islamist militants in Afghanistan, Iraq, and elsewhere.”).
2 Recent media coverage has focused on the armed conflict against Al Qaeda’s expansion
to Yemen and the Horn of Africa. Craig Whitlock & Greg Miller, U.S. Assembling Secret
Drone Bases in Africa, Arabian Peninsula, Officials Say, WASH. POST, Sept. 20, 2011,
http://www.washingtonpost.com/world/national-security/us-building-secret-drone-bases-
58 MILITARY LAW REVIEW [Vol. 211
diffusion, the conflict has also spread to other organizations beyond
those that perpetrated 9/11. Although initially a conflict with Al Qaeda,3
the conflict now encompasses organizations, groups, and networks as
diverse as Al Qaeda in the Arabian Peninsula, the Pakistani Taliban, the
Haqqani Network in Pakistan, Jemaah Islamiyah in Indonesia, Boko
Haram in Nigeria, and Al Shabaab in Somalia.4 This diffusion, combined
with the increasingly publicity surrounding drone attacks5 and the
inevitable reflection brought about by decennial anniversaries,6 has led to
renewed debate about the United States’s “war on terrorism” and the law
that has authorized it to date.
This article, prompted by Congress’s recent failed efforts to revisit
and refine the September 18, 2001, Authorization for Use of Military
Force (AUMF), argues for a “middle ground” approach to the statute’s
reauthorization. It makes the case that a new authorization is needed
because, contrary to the Obama Administration’s suggestions, the current
statute is rapidly approaching obsolescence. Despite the intense media
focus on the most recent legislative cycle, Congress has left the 2001
authorization legally unaltered and still anchored to the September 11,
2001, attacks. Confronting this reality presents three options: foregoing
military operations against non-Al Qaeda terrorist organizations,
in-africa-arabian-peninsula-officials-say/2011/09/20/gIQAJ8rOjK_story.html (describing
the Obama administration’s “constellation of secret drone bases [in Ethiopia, Djibouti,
Yemen, and the Seychelles] for counterterrorism operations in the Horn of Africa and the
Arabian Peninsula”). However, the U.S. military’s counterterrorism operations extend
throughout the globe. In fact, the Department of Defense’s Global War on Terrorism
Expeditionary Medal recognizes individuals for service in dozens of countries, including
in the Middle East, North Africa, West Africa, East Africa, South America, Europe, and
Guantanamo Bay, Cuba. Global War on Terrorism Expeditionary Medal, AIR FORCE
PERSONNEL CTR., http://www.afpc.af.mil/library/factsheets/factsheet_print.asp?fsID=
7812&page=1 (last visited June 24, 2012).
3 This article uses the spelling “Al Qaeda” throughout, but respects the choices of other
authors, leaving quoted sections as originally written.
4 See, e.g., Paul R. Pillar, The Diffusion of Terrorism, 21 MEDITERRANEAN Q. 1, 3 (2010)
(“Al Qaeda is, despite its salience and name recognition, only a piece of the larger
organizational picture of Islamist terrorism.”); Thom Shanker & Eric Schmitt, Three
Terrorist Groups in Africa Pose Threat to U.S., American Commander Says, N.Y. TIMES,
Sept. 14, 2011, http://www.nytimes.com/2011/09/15/world/africa/three-terrorist-groups-
in-africa-pose-threat-to-us-general-ham-says.html.
5 See PETER BERGEN & KATHERINE TIEDEMANN, NEW AMERICA FOUND., THE YEAR OF THE
DRONE: AN ANALYSIS OF U.S. DRONE STRIKES IN PAKISTAN, 2004–2010 (2010), available
at http://counterterrorism.newamerica.net/sites/newamerica.net/files/policydocs/bergentie
demann2.pdf.
6 See, e.g., Symposium, Unsettled Foundations, Uncertain Results: 9/11 and the Law,
Ten Years After, 63 RUTGERS L. REV. 1085 (2011).
2012] REAUTHORIZING THE “WAR ON TERROR” 59
accepting the AUMF’s obsolescence and relying on alternative legal
authority, or refashioning a new domestic statutory authority for the U.S.
military’s global anti-terrorist operations.
A new AUMF is the best option available to U.S. policymakers if it
is to continue its military efforts against terrorist groups and networks.7
A new authorization would clarify the authority the current AUMF
grants to the president, which, especially as it relates to the use of
military force against U.S. citizens and within the domestic territory of
the United States, is extraordinarily vague. A new authorization would
also avert tempting, but ultimately dangerous, legal alternatives—
namely, harmful interpretations of domestic and international law. On
the domestic front, reverting to a reliance on the president’s Commander
in Chief powers would place the U.S. military’s global anti-terrorism
efforts on a fragile legal foundation already weakened by the Supreme
Court’s skepticism and further remove this important military campaign
from effective democratic control. In the international arena, relying
instead on an overly expansive interpretation of the right to self-defense
under international law would undermine the Obama Administration’s
efforts to lead by legal example and encourage the proliferation of a
potentially destabilizing understanding of the jus ad bellum. Reaffirming
the AUMF is therefore not just an issue of legal and academic curiosity,
but a matter of vital domestic and international concern. Despite the
urgent need for a proper legal basis for U.S. military counterterrorism
operations, however, Congress’s recent efforts have fallen short. This
article thus argues generally for a new AUMF, but also specifically that
the new authorization should strike a measured balance, granting the
President the power to effectively combat global terrorism while
stopping short of authorizing unlimited, permanent war with whomever
the President deems an enemy.8
Part II of this article will explain why congressional action actually
matters today as an affirmative grant of authority and a substantive
restriction on the President’s power to use military force. Part III will
examine the scope of the current AUMF in light of its text, legislative
7 Of course, a new AUMF is by no means the only legal authority upon which the United
States could base its global counterterrorism efforts; this article argues merely that such
an approach is the best solution in light of the costs associated with the alternatives.
8 Although much of the previous analysis of the AUMF has focused on its application to
detention and detainee issues, this article will address the AUMF’s relevance to the
increasingly prevalent target killing of suspected terrorists through military and covert
operations.

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