BY SPENCER ACKERMAN 03.07.13 10:30 AM
Thought the post-9/11 law that gave the president power to wage a global war against terrorists was expansive? Wait till you see the 2.0 upgrade.
According to The Washington Post, the Obama administration is reconsidering its opposition to a new Authorization to Use Military Force, or AUMF, the foundational legal basis of the so-called war on terrorism. That short document, passed overwhelmingly by Congress days after the 9/11 attacks, tethered a U.S. military response to anyone who “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Nearly all of those people are dead or detained.
There are two ways to view that circumstance. One is to say the United States won the war on terrorism. The other is to expand the definition of the adversary to what an ex-official quoted by thePost called “associates of associates” of al-Qaida.
And that’s the one the administration is mooting. “Administration officials acknowledged that they could be forced to seek new legal cover if the president decides that strikes are necessary against nascent groups that don’t have direct al-Qaeda links,” the Post reports. Examples of the targets under consideration include the extreme Islamist faction of the Syrian rebellion; the Ansar al-Sharia organization suspected of involvement in September’s Benghazi assault; and Mokhtar Belmokhtar, the one-eyed terrorist who broke with al-Qaida but is believed to be behind the January seizure of an Algerian oil field.
Ansar al-Sharia may be the hardest such case, since it attacked sovereign U.S. soil in eastern Libya. None of those organizations and individuals, however, are substantially tied to al-Qaida. Which raises the challenge of any new legal authority: defining an adversary in a rigorous way, such that it both encapsulates the scope of the actual threat posed to the U.S. by associates of associates of al-Qaida and sets up the U.S. to actually end that threat. The bureaucratic mechanisms of the war are already outpacing a new AUMF, as drone bases get established in places like Niger, far from any al-Qaida operations, and the Obama administration codifies its procedures for marking terrorist targets for death.
The current AUMF already authorizes broad war powers to the president. As Sen. Rand Paul (R-Ky.) noted in his filibuster of impending CIA director John Brennan Wednesday, it establishes a “war with no temporal limits” or geographic ones. In Pakistan, the U.S. doesn’t just launch drone strikes and commando raids against core al-Qaida remnants, it also kills unknown individuals believed to fit a terrorist profile based on observed pattern-of-life behavior. The CIA and Joint Special Operations Command are also waging a campaign against al-Qaida’s Yemen-based affiliate, an “association” never mentioned in the AUMF, albeit against an organization that has unsuccessfully attempted to attack the U.S. at home. Even in Yemen, the U.S. also carries out so-called “signature strikes” against anonymous targets. Sen. Lindsey Graham (R-SC) recently said that the drone strikes have killed 4,700 people, orders of magnitude more than were involved in the 9/11 conspiracy and core al-Qaida.
But if these campaigns have strained the authorities underscored by the AUMF, practically no one in Congress has objected, either on legal or strategy grounds. In fact, as Rep. Buck McKeon (R-Calif.) pointed out in 2010, more than half the legislators who voted for the AUMF in 2001 are no longer even in Congress, yet the wars persist while the adversary morphs. Changing that dynamic to constrain the war will be a major test of the durability and influence of the civil-liberties coalition that Paul’s filibuster seemed to inspire.
Yet when McKeon suggested a new AUMF, both to take into account a changed al-Qaida and to allow Congress to bless or reject that war, the Obama administration balked. Jeh Johnson, then the Pentagon’s top lawyer, called the existing AUMF “sufficient to address the existing threats.” There was a complication: the administration was concerned that the GOP-led House would expand the war even further, while simultaneously requiring the administration to expand the detainee population at Guantanamo Bay, undercutting a major administration initiative. The new-AUMF effort ultimately went nowhere.
Now, even if the administration and Congress still disagree on Gitmo, it would appear that at least some in the administration have reached consensus with McKeon’s point. That point, however, favors expanding and entrenching a war that the U.S. has shown no capacity to successfully end. Ironically, revisiting the AUMF arguably weakens the U.S. capacity to win the war, since it shows that when the U.S. reaches the end of its “kill lists,” it just shifts the goal posts and targets new terrorist organizations.
All of which contradicts the claim in Obama’s second inaugural address that “enduring security and lasting peace do not require perpetual war” — which the Post reports makes Obama himself uncomfortable. It also undercuts the major points of a 13-hour filibuster that has Washington, and especially conservatives, enthusiastic. Political trends fade, but the war on terrorism manages to endure.