Repeal and Restore
How President Obama can end the war on terror, once and for all.
Does anyone remember the speech in which President Barack Obama promised to end the war on terror? Let me remind you: Speaking last May at the National Defense University (NDU), the president noted that, with "the core of al Qaeda… on the path to defeat" and most of its affiliates "focused on operating in the countries and regions where they are based," the scale of the threat the United States now faces "closely resembles the types of attacks we faced before 9/11." The president was inviting a national discussion on whether, how, and when to declare the war over.
But it never happened. So let’s have that discussion now.
If there’s a passage in the NDU speech that people do seem to remember, it was the president’s spirited defense of the use of drones. Fewer of us recollect that the president also announced that he had signed a "Presidential Policy Guidance," which stipulated that, henceforth, the United States would use lethal force outside war zones only against a "senior operational leader" of al Qaeda or an affiliate who "poses a continuing, imminent threat to U.S. persons," and only under conditions of "near-certainty" that the target was present and "non-combatants will not be injured or killed."
While the details of drone strikes remain shrouded in mystery, the administration has almost certainly failed in some cases to satisfy those stringent standards announced in the speech. Nevertheless, the president was making a down payment on his promise to put an end to the post-9/11 policies he had inherited. He also promised to finally close the detention facility in Guantánamo Bay and to use diplomacy and aid to address "the underlying grievances and conflicts that feed extremism."
In every supremely lawyered syllable, Obama was saying: It’s not a war anymore. If you look very closely at the guidance on the use of lethal force, Obama was agreeing to bind himself to the rules governing behavior in non-battlefield settings, including the requirement of an imminent threat and the high threshold for the avoidance of civilian casualties. The same holds true for Guantánamo, since international law prohibits indefinite detention save during hostilities.
If the United States is no longer at war, the president doesn’t need extraordinary war powers. Congress granted those powers on Sept. 14, 2001, in the form of the Authorization for Use of Military Force (AUMF), which permits the president to "use all necessary and appropriate force" against the organizations which carried out the attacks of 9/11. The AUMF is the heart of the legal structure of the war on terror. Repealing the statute, more than any single act, would mark the end of that war. In his speech, Obama called on Congress to "refine, and ultimately repeal" the act. Yet he has said virtually nothing on the subject since then.
The president has also never identified the moment when he believes he could do without those powers. How about at the end of this year? That’s when all combat troops will have withdrawn from Afghanistan, thus ending the actual "war" of the war on terror. What’s more, in his most recent State of the Union speech, Obama said that Guantánamo should close by the end of this year (though that will prove much harder to do).
Harold Koh, the former State Department legal counsel, told me that he favors a repeal of the AUMF in the near term, preferably by the end of 2014. Last summer, Rep. Adam Schiff offered a resolution to do just that. It lost, but garnered 180 votes. Schiff told me that he will re-introduce the measure this spring.
The AUMF has a reciprocal relationship to the measures it authorizes. If you’re not at war, you don’t need it. And if you don’t have it, you can’t engage in war-like acts such as the indefinite detention of belligerents. One very good reason to repeal the AUMF is to make it absolutely clear that the United States does not wish to have that authority. There is, for example, no further justification for indefinite detention. No new inmate has arrived at Gitmo since 2008, and when the United States withdraws combats troops from Afghanistan, it will no longer be encountering adversaries to be detained.
If Congress repealed the AUMF, the president would still be able to rely on the powers enumerated in Article II of the Constitution to defend America from attack. Both Harold Koh and Matthew Waxman, a former Bush administration legal official, agree that this would include the authority to use drones — or special forces — for targeted missions, so long as they abide by the more stringent terms of the president’s 2013 guidance on the use of lethal force. (The president would probably still be able under certain circumstances to order the killing of an American citizen, as he is now reportedly considering.) Nevertheless, a president without war powers would probably shy away from the outer limits of his constitutional prerogatives, looking instead to the other instruments at his disposal to deal with terrorism.
The AUMF is, in any case, very nearly obsolete. In Yemen, Somalia, and across North Africa, the United States is no longer fighting al Qaeda but its affiliates. The Supreme Court has ruled that the AUMF covers "associates" of al Qaeda, but demarcating this category has become an increasingly Jesuitical exercise. Especially after the war ends in Afghanistan, courts are going to be skeptical about the invocation of war powers against tenuously linked associates of al Qaeda. For this reason, Waxman and three colleagues have argued for updating the AUMF rather than repealing it, setting out clear criteria for the use of force and compiling a list of terrorist adversaries.
That’s a sensible response if you think the most important objective is to preserve the president’s freedom of action against terrorist groups. But I would say the most important objective is to restore America to itself. That doesn’t simply mean forswearing war powers Americans were quick to grant after 9/11. It also means ending the reign of fear that inevitably emerged after the terrorist attacks. Americans still live inside their fear — or at least their elected representatives behave as if they do. Think of the insane overreaction to the prospect of holding the trials of major figures like Khalid Sheikh Mohammed in civilian courts in the United States, or of transferring such figures to American prisons; or of the convulsive police reaction to the Tsarnaev brothers’ bombing, which paralyzed metropolitan Boston; or of the pervasive military presence in so many public spaces. This is a national pathology that must be overcome — especially before some new terrorist slips through the net and launches a successful strike on U.S. territory.
Obama will have excellent political reasons for putting off the repeal of the AUMF. The Republicans will rain down demagoguery from the skies — especially should a new terror attack occur. And sure, Obama could "refine" the law rather than repeal it, even if a new statute would be very hard to design. He could also ask Congress to pass a new AUMF that must be annually renewed, which, as Koh suggests, would have the added virtue of forcing Congress to become a partner in the legal response to terrorism.
But Obama can afford to take political risks — he isn’t running for re-election. And, as Schiff points out, thanks to the national war exhaustion, Republicans are far more receptive to dialing down the counter-terror volume than they were only a few years ago.
Most fundamentally, however, no half-measure will convey the message that Obama plainly wants to transmit: We are no longer at war with terrorists.
It is increasingly clear that this president is pursuing a subtractive foreign policy. He ended torture. He removed American troops from Iraq; he is removing them from Afghanistan. All this is necessary, but it is still not the legacy he imagined for himself, or that his supporters hoped for. It is now within his power to end the war on terror. And that is something the American people will thank him for.