Mission Creep in the War on Terror

When a government is accused of activities that stretch or violate the law, it has three choices: 1) change the activities to conform with the law; 2) change the law to conform with the activities; or 3) lie (about the nature of the activities, the meaning of the law, or both).

Option 3 isn’t a comfortable one for the Obama administration, which is, thank heaven, not prone to outright lying. Some senior officials tolerate a moderate amount of fudging and obfuscation, but when the fudge factor gets too high, it induces visible queasiness. Over the last couple of weeks, we’ve seen more than a little such discomfort on the faces of those stuck with justifying U.S. drone policy to Congress and the public.

That’s not surprising: As the targets of U.S. drone strikes have expanded from senior Taliban and al Qaeda operatives to a far broader range of individuals with only the most tenuous links to al Qaeda, the administration’s legal arguments for targeted killings have grown ever more tortured and complex. In particular, it’s gotten progressively more difficult for officials to avoid blushing while claiming that U.S. drone policy is fully consistent with Congress’s 2001 Authorization for Use of Military Force (AUMF), which authorizes force only against those who bear some responsibility for the 9/11 attacks.

With Option 3 — lie, lie, lie — off the table, and fudging and obfuscation growing harder to comfortably sustain, the thoughts of administration officials turn naturally to Option 2: change the law. Thus, as the Washington Post reported last weekend, some administration officials are apparently considering asking Congress for a new, improved "AUMF 2.0," one that would place U.S. drone policy on firmer legal footing.

Just who is behind this notion is unclear, but the idea of a revised AUMF has been gaining considerable bipartisan traction outside the administration. In a recent Hoover Institution publication, for instance, Bobby Chesney, who served in the Obama Justice Department, teams up with Brookings’s Ben Wittes and Bush administration veterans Jack Goldsmith and Matt Waxman to argue for a revised AUMF — one that can provide "a new legal foundation for next-generation terrorist threats."

I’m as fond of the rule of law as the next gal, so in a general sense, I applaud the desire to ensure that future executive branch counterterrorist activities are consistent with the laws passed by Congress. But "laws" and "the rule of law" are two different animals, and an expanded new AUMF is a bad idea.

Sure, legislative authorization for the use of force against "next generation" terrorist threats would give an additional veneer of legality to U.S. drone policy, and make congressional testimony less uncomfortable for John Brennan and Eric Holder. But an expanded AUMF would also likely lead to thoughtless further expansion of targeted killings. This would be strategically foolish, and would further undermine the rule of law.

An expanded AUMF is also unnecessary. Even if Congress simply repealed the 2001 AUMF (as the New York Times editorial board urges) instead of revising it, the president already has all the legal authority he needs to keep the nation safe.

If U.S. drone policy is currently on shaky legal ground, it’s not for lack of inherent executive authority (or international law authority) to use force against any terrorist organization that poses an imminent and grave threat to the United States. U.S. drone policy is on shaky legal ground because the administration has lost sight of the difference between threats that are imminent and grave and threats better characterized as speculative and minor. We’ve lost all sense of perspective, and strategically, we’ve lost the ball.

Rather than fudging the law and the facts, or changing the law, the administration would do better to revert to Option 1: reform U.S. drone policy to comply with longstanding legal norms governing the use of force.

Ancient History: 9/11 and the AUMF

Start with some background. The original AUMF was passed on September 14, 2001. It gives the president congressional blessing to

[U]se 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.

The 2011 AUMF is forward-looking, insofar as its language is focused on prevention rather than retaliation, but it’s also backward-looking, insofar as force is explicitly authorized only against those with responsibility for the 9/11 attacks.

For most of the last dozen years, the AUMF provided adequate domestic legal cover for U.S. drone strikes, since nearly all the individuals targeted were believed to be senior Taliban or al Qaeda operatives. Of course, U.S. drone strikes could be criticized on other grounds — as strategically foolish, or as lacking in transparency and protections against abuse — but strictly from a legislative perspective, most of the early U.S. drone strikes appeared comfortably within the scope of the congressionally-granted authority to use force.

But this has changed in the last few years. The 9/11 attacks are receding into the past, the war in Iraq — which also had its own special AUMF — is over, the war in Afghanistan is winding down, and al Qaeda has been significantly weakened. As a result, the United States is running out of "nations, organizations, or persons" that can plausibly be viewed as complicit in the 9/11 attacks.

This does not mean we’ve run out of terrorists. The world, it turns out, offers a nearly inexhaustible supply of people who don’t much like the United States. Some subset of those people self-identify with the distorted brand of Islam favored by al Qaeda and the Taliban, and a further subset are prepared to use violence to further their ends. Thanks in part to heavy-handed post-9/11 U.S. policy, al Qaeda became both a franchise and an inspiration to aspiring terrorists all around the globe. As a result, it’s now possible to find plenty of unsavory groups that might be inclined to do harm to the United States, had they but world enough and time.

When you’re not near the terrorist you’re targeting, target the terrorist you’re near

Once established, bureaucracies take on lives of their
own. Having built up an elaborate military and paramilitary apparatus to go after the 9/11 perpetrators, the U.S. government now finds it hard to scale back down, even though many of the groups now being identified as threats don’t fall clearly under the AUMF’s umbrella — and many don’t pose a significant danger to the United States. It’s not entirely clear, for instance, how meaningful the ties are between Somalia’s al-Shabab and al Qaeda, and there’s little reason to view al-Shabab as complicit in the 9/11 attacks. To the extent that the 2001 AUMF was focused on prevention, there’s also little clear reason to focus on al-Shabab, which has historically had only local and regional ambitions. Granting that al-Shabab is a thoroughly nasty organization, is there truly a significant likelihood that it poses an imminent, non-trivial threat to the United States?

"When you’re not near the girl you love, love the girl you’re near," sang Frank Sinatra. The U.S. government seems to have its own variant: When you’re not near the terrorist you’re supposed to target, target the terrorist you’re near. To accommodate this desire, both the Bush and Obama administrations have had to gradually stretch the AUMF’s language to accommodate an ever-widening range of potential targets, ever more attenuated from the 9/11 perpetrators.

The shift has been subtle, and for the most part Congress has aided and abetted it. In the 2006 and 2009 Military Commissions Acts, for instance, Congress gave military commissions jurisdiction over individuals who are "part of forces associated with al Qaeda or the Taliban," along with "those who purposefully and materially support such forces in hostilities against U.S. Coalition partners." This allowed the Bush and then the Obama administration to argue that in the original 2001 AUMF, Congress must have implicitly authorized the use of force against al Qaeda and Taliban "associated forces." That is, if Congress considers it appropriate for U.S. military commissions to have jurisdiction over al Qaeda and Taliban associates, Congress must believe the executive branch has the authority to detain such associates, and the authority to detain must stem from the authority to use force. This suggests that Congress must believe the AUMF should be read in the context of traditional law-of-war authorities, which include the implied authority to use force against (or detain) both the declared enemy and the enemy’s "co-belligerents" or "associated forces."

By 2009, the Obama administration was arguing in court that, at least when it comes to detention, the AUMF implicitly authorizes the president "to detain persons who were part of, or substantially supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners" (my emphasis). Note how far this has shifted from the original language of the AUMF: The focus is no longer merely on those who were directly complicit in the 9/11 attacks, but on a far broader category of individuals. This broadened understanding of executive detention authority was later given the congressional nod in the 2012 National Defense Authorization Act, which used virtually identical language.

The other key move in the gradual expansion of the scope of the 2001 AUMF was the conflation of detention authority with the authority to use lethal force. Logically, as the Supreme Court noted in 2004, a party to a conflict has the power to detain those it has the power to kill: If it would be lawful to shoot an enemy combatant, it must be lawful to capture and hold him instead. Working backward from this principle, the Obama administration appears to have reasoned (quite fallaciously) that if it’s lawful to detain an individual, it’s equally lawful to use force against him.

This sort of reasoning contributed to the legal theories articulated in a recently leaked 2011 Justice Department white paper, which asserted that even a U.S. citizen can be targeted and killed outside any "areas of hostilities" if an unspecified "high level official" in the U.S. government concludes that he is a "senior operational leader" of al Qaeda or an "associated force." (The DOJ white paper relies both on law of war arguments and self-defense arguments, often semi-conflating the two.) Public statements by senior U.S. officials suggest that the current standard for targeting non-citizens is far lower: Any suspected "member" of al Qaeda or "associated forces" is targetable, as are those with "unique operational skills that are being leveraged in a planned attack." Even when an individual’s identity is not known, targetability may be inferred from patterns of activity detected by surveillance.

AUMF 2.0!

In February 2012, Pentagon General Counsel Jeh Johnson insisted that the 2001 AUMF is the domestic legal "bedrock" of the military’s drone strikes. But as Jack Goldsmith acknowledges, "The AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization."

John Bellinger, a former State Department legal advisor under President Bush, puts it a bit more bluntly: The AUMF is "getting a little long in the tooth." Like it or not, the language of the AUMF is still clearly "tied to the use of force against the people who planned, committed, and or aided those involved in 9/11," says Bellinger. "The farther we get from [targeting] al-Qaeda, the harder it is to squeeze [those operations] into the AUMF."

Thus the clamor for a revised AUMF. If militant groups with no connection to 9/11 can’t be shoehorned into the 2001 AUMF, let’s just expand the AUMF!

But this begs the essential question: Why exactly is the United States chasing after every two-bit Islamic terrorist on the planet? With the sole exception of 2001, terrorist groups worldwide have never managed to kill more than a handful of Americans citizens in any given year. According to the State Department, 17 American citizens were killed by terrorists in 2011, for instance. The terrorist death toll was 15 in 2010, and nine in 2009.

These deaths are tragedies — but keep the numbers in perspective. On average, about 55 Americans are killed by lightning strikes each year, and ordinary criminal homicide claims about 16,000 U.S. victims each year. No one, however, believes we need to give the e
xecutive branch extraordinary legal authorities to keep Americans from venturing out in storms, or to use armed drones to kill homicide suspects.

Please, no emails accusing me of not taking terrorism seriously. Terrorism is a very real problem, and we can’t ignore it, any more than we should ignore violent crime or public health threats. Like everyone else, I worry about terrorists getting ahold of weapons of mass destruction. But terrorism is neither the only threat nor the most serious threat the United States faces, and armed drones are not the only tool in the U.S. arsenal against terrorism.

Since 9/11, we’ve gotten much, much better at tracking terrorist activity, disrupting terrorist communications and financing, catching terrorists and convicting them in civilian courts, and a wide range of other counterterrorism measures. Much of the time, these non-lethal approaches to counterterrorism are just as effective as targeted killings. In fact, there’s growing reason to fear that U.S. drone strikes are counterproductive: As no less an authority than retired General Stanley McChrystal said in February, "The resentment created by American use of unmanned strikes…is much greater than the average American appreciates. They are hated on a visceral level, even by people who’ve never seen one or seen the effects of one," and they fuel "a perception of American arrogance."

Former Director of National Intelligence Dennis Blair agrees: The United States needs to "pull back on unilateral actions…except in extraordinary circumstances," Blair told CBS News in January. U.S. drone strikes are "alienating the countries concerned [and]…threatening the prospects for long-term reform raised by the Arab Spring….[U.S. drone strategy has us] walking out on a thinner and thinner ledge and if even we get to the far extent of it, we are not going to lower the fundamental threat to the U.S. any lower than we have it now."

To be fair, many proponents of a revised AUMF, such as Chesney, Goldsmith, Waxman, and Wittes, acknowledge these concerns. They nevertheless argue that it’s possible to draft an AUMF that both provides the president with needed legal authorities and provides adequate safeguards against abuse and infinite expansion of the war on terror.

I’m not convinced. For one thing, it was some of the best legal minds in the Obama administration that managed to produce the 2011 DOJ white paper on targeted killings of U.S. citizens, and that was a piece of legalistic garbage that enraged liberals and conservatives alike. Why imagine that administration input into a new AUMF would be any better than that DOJ white paper? For another thing, there’s Congress. If you think this Congress is going to develop a responsible, bipartisan approach to counterterrorism and the use of force — one that respects both U.S. constitutional norms and international law — I have a bridge in Brooklyn to sell you.

A revised AUMF is likely to do precisely what the Bush administration sought to do in the run-up to the Iraq War: codify a dangerous unilateral theory of preemptive war, and provide a veneer of legality for an open-ended conflict against an endlessly expanding list of targets.

There’s always Option 1

Why open up that can of worms? If what we’re concerned about is protecting the nation, we don’t need a revised AUMF.

With or without the 2001 AUMF, no one seriously doubts that the president has inherent constitutional authority (and international law authority) to use force when necessary to prevent imminent and grave harm to the United States. But the key concepts there are "necessary," "imminent," and "grave," which means that unilateral, non-congressionally authorized uses of force should be reserved for rare and unusual circumstances — as indeed they have been, for most of U.S. history.

AUMF or no AUMF, if the United States finds credible evidence of an imminent and grave terrorist attack — of the 9/11 variety — no one’s going to give the president a hard time if he kills the bad guys before they have a chance to attack us. And trust me: If the president has solid evidence of such an impending attack, it won’t matter if the terrorists are an al Qaeda offshoot or a rogue group of Canadian girl scouts.

And if, despite our best efforts at prevention, another serious terrorist attack occurs in the future, Congress will undoubtedly be quick to give the president any additional authorities he needs — with the same speed with which Congress passed its 2001 authorization to use force.

In the end, it’s not that complicated. If we can’t shoehorn drone strikes against every "associate of an associate" of al Qaeda into the 2001 AUMF, we should stop trying to stretch or change the law. Instead, we should scale back the targeted killings.

It’s past time for a serious overhaul of U.S. counterterrorism strategy. This needs to include a rigorous cost-benefit analysis of U.S. drone strikes, one that takes into account issues both of domestic legality and international legitimacy, and evaluates the impact of targeted killings on regional stability, terrorist recruiting, extremist sentiment, and the future behavior of powerful states such as Russia and China. If we undertake such a rigorous cost-benefit analysis, I suspect we’ll come to see scaling back drone strikes less as an inconvenience than as a strategic necessity — and we may come to a new appreciation of counterterrorism measures that don’t involve missiles raining from the sky.

This doesn’t mean we should never use armed drones — drones, like any other weapons-delivery mechanism, will at times be justifiable and useful. But it does mean we should rediscover a long-standing American tradition: reserving the use of exceptional authorities for rare and exceptional circumstances.