A year after Obama's NDU speech, the AUMF continues to spark debate in Washington

The debate over the AUMF is likely to intensify as the US moves closer to withdrawing its troops from Afghanistan. Image courtesy of the US Army

The debate over the AUMF is likely to intensify as the US moves closer to withdrawing its troops from Afghanistan. Image courtesy of the US Army

Friday marked one year since President Obama's important speech at the National Defense University during which he outlined the threats facing the United States and his vision for dealing with them. He spoke of the need for enhanced partnerships with other countries, counterterrorism cooperation and intelligence sharing, the detention of terror suspects, and the nation's use of what he described as "lethal targeted action" in the form of drone strikes.

He also announced his intention to engage Congress about the existing Authorization to Use Military Force (AUMF) to determine how the US "can continue to fight terrorism without keeping America on a perpetual wartime footing." He added that he hoped to "refine, and ultimately repeal, the AUMF's mandate."

The future of the almost 13-year-old AUMF has been the subject of a lot of debate as of late, especially on law, policy, news, and national security platforms.

We addressed the issue recently here on Intercross in a series that included guest contributions from University of Texas School of Law Professor, Bobby Chesney, and Assistant Professor at the American University Washington College of Law, Jennifer Daskal.

Here's a brief overview of what some others have been saying about the AUMF in recent days:

Human Rights First sponsored a discussion moderated by their National Security Senior Fellow, Heather Hurlburt, who also wrote a piece in the World Politics Review, in which she examined how well the US is doing in moving away from the "paradigm of war in confronting the threat posed by terrorism."

"With combat operations in Afghanistan scheduled to end in December, it seems possible to imagine, for the first time in more than a decade, a world in which the U.S. is not at war," she opined. "And yet, terrorism is seldom out of the headlines, and around the world, terrorist violence is up, according to the State Department."  

She put the question, "Must all wars end?" to her guest speakers at the HRF event –  the Washington Post's Charlie Savage and former Department of State Legal Advisor and current Sterling Professor of International Law at Yale, Harold Koh, who discussed where and with whom the US is involved in armed conflict, when these conflicts might end, and whether war is the best approach to combating terrorism.

Incidentally, Prof. Koh gave a statement to the Senate Foreign Relations Committee on Wednesday in which he reiterated his support for President Obama's pledge.

"I agree with the President first, that the armed conflict that began against Al Qaeda and its co-belligerents nearly thirteen years ago, 'like all wars, must end'," he told a group of visibly frustrated lawmakers. "Second, that Congress should aim to 'ultimately repeal, the mandate' of the AUMF; and third, that in the interim, Congress should explore ways to narrow the AUMF rather than 'to expand the AUMF’s mandate further'.”

Writing on the Just Security blog Friday, Prof. Koh, reflects on the five basic messages he took away from Wednesday's Senate hearing, including this one:

"We should keep trying to end the Forever War. Our eventual goal should be to repeal the AUMF. Almost thirteen years after 9/11, it is increasingly problematic to rely on the 2001 AUMF to conduct all of America’s counterterrorism operations," he writes.  

Harvard Law School Professor Jack Goldsmith responded to Prof. Koh's testimony and post, saying he concurred with the "need for and contours of a new AUMF." He also wrote a couple of thought-provoking pieces earlier in the week.

Meanwhile, Kenneth Anderson, a professor at American University's Washington College of Law, penned a review of a new article written by David A. Simon, special counsel to the General Counsel at the Department of Defense, entitled "Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda." Prof. Anderson described the article as excellent, saying it offered a "careful, nuanced walk through the domestic constitutional issues of the end of the conflict against Al Qaeda and associated forces." Read it for yourself here.

The Washington Post's Karen DeYoung also offered up an analysis of the Foreign Relations Committee testimony and an assessment of how far the Obama Administration has – or hasn't – come in reaching its stated goals since last May.

"A year after President Obama announced a major new counterterrorism strategy to take the country beyond the threats that flowed directly from the attacks of Sept. 11, 2001, much of the agenda he outlined remains unfinished or not even begun," she wrote.

And finally, frequent Intercross contributor, Bobby Chesney also had a lot to say on the subject. He wrote two articles on Lawfare – the first proposing a series of questions that should have been asked during the hearing and the second pointing out that the testimony had underscored a point he developed in his "Postwar paper": that "repeal of the AUMF would not require, as a legal matter, that the government forgo the use of lethal force in the counterterrorism setting nearly so much as many assume."

All in all, the AUMF generated a lot of discussion in Washington this week and the topic is likely to continue sparking debate as the US troop withdrawal from Afghanistan progresses, and American counter-terror operations become increasingly distanced from the events of September 11.

Ellen Policinski of ICRC DC's legal division contributed to this post.