By Assistant Professor Jennifer Daskal American University Washington College of Law
With thanks to the ICRC's regional delegation in Washington for hosting this discussion, and to Gary Brown and Bobby Chesney for their thoughtful commentary, I want to shift the conversation to the domestic law issues. My focus is on the implications of a repeal of the 2001 AUMF – something that the President of United States has indicated he would support – for the United States’ counterterrorism authorities. I start with questions about the use of lethal force and then move to the trickier issues surrounding detention.
First, it is important to keep in mind, as Bobby also pointed out in his guest post, that even if the AUMF were repealed, the President would still retain both domestic and international law authority to employ force as a matter of self-defense. Already, even in the context of what the administration deems an ongoing armed conflict, the President has restricted uses of lethal force outside areas of active hostilities to situations in which a target poses a “continuing, imminent” threat to US persons, capture is not feasible, and there is a near certainty that the target is present and that non-combatants will not be injured. These same standards, appropriately defined (and this, of course, is key), would also appear to justify the use of force in self-defense – allowing for unilateral Presidential action, i.e., without statutory authorization, as a matter of US constitutional law, at least in cases where the group being targeted had demonstrated the continuing threat by having already attacked the United States or United States person. This is Bobby’s main point in his excellent article, Postwar.
That said, a formal repeal of the AUMF will likely have at least some constraining effect on lethal targeting operations. Most importantly, repeal would make the President’s self-imposed policy constraints legally binding, rather than something that he could override at will. Once that happens, what Bobby calls the “soft-constraint mechanisms” – namely a shift in the balance of power among the executive branch agencies responsible for carrying out counterterrorism policies, diplomatic pressure, and public expectations that uses of force will be rare and limited – are likely to become increasingly powerful. Hard and soft constraints will work in tandem, putting pressure on the executive to employ self-defensive when needed to protect the nation, but to do so narrowly, when truly necessary to protect the nation from a specific and grave threat that cannot be addressed through other means.
Second, this shift would not leave the United States hapless in the face of lower-level, simmering threats that do not rise to the level that justifies use of lethal force in self-defense. Nor is it the case, as Steve Vladeck and I have discussed at length in our article, After the AUMF, that the use of law enforcement tools and other tools, rather than military force, as a matter of first resort, would return the nation to the vulnerable position of the days and months leading up to the September 11, 2001, attacks. To the contrary, the nation has a wide array of robust, effective, and increasingly powerful law enforcement, surveillance, and other tools at its disposal (including, for example, enhanced counterterrorism partnerships with foreign nations) that do not involve lethal force. Among the many changes that have taken place of the past 13 years, the “wall” inhibiting the sharing of intelligence and law enforcement information has come down; the substantive and jurisdictional reach of our criminal laws have greatly expanded to cover a wide array of terrorism-related conduct overseas; and the ability to track and monitor persons of interest has increased exponentially. Meanwhile, civilian criminal courts have proven effective as both an incapacitation and evidence-gathering tool, as the recent convictions of Ahmed Warsame, who pled guilty to providing material support to al Qaeda and Al Shabaab and reportedly provided extensive intelligence to interrogators, and Abu Ghaith, the most senior al Qaeda leader to be tried in civilian court since September 11, among many others, demonstrate.
Third, if all this is right, then the key obstacle to repeal is the so-called “legacy” detention issue. As is well-known, the AUMF provides the domestic law authority for the detention of the remaining 154 detainees at Guantanamo Bay. While more than half have been cleared for transfer, and another handful are slated for prosecution, there are an estimated 45 men whom the US government has deemed too dangerous to release, yet ineligible for trial due to evidentiary concerns and/or limitations in the reach of substantive criminal laws at the time of their activities. Without the AUMF, there is no explicit domestic authority for the continued detention of these men.
But as I have argued elsewhere, an interest in the continued detention of 45 men cannot – and should not – justify continued armed conflict. That would be a perverse example of the tail wagging the dog. Nations have long released enemy prisoners at the end of armed conflict, even ones that avowedly sought to annihilate their captors. This conflict should be no different.
That’s not to say there are easy answers. If there were, Guantanamo would have been closed years ago. But with sufficient advance notice (and dollars to work with), it is likely that the government would be able to negotiate transfer arrangements with other nations that would allow for close surveillance of those detainees of particular concern. Alternatively, to the extent that those 45 Guantanamo detainees remain the sole obstacle to closure, then we should begin a serious domestic conversation about possible legislation to deal with that narrow and specific problem – not a continuation of war.
Notably, the issue may come to a head, even without the repeal of the AUMF, given the US Supreme Court’s suggestion (albeit in a plurality opinion) that because the AUMF-based detention authority is informed by the law of war, detention may last no longer than active hostilities. If the facts on the ground no longer support a finding of armed conflict (a question which Bobby rightly notes is separate from the question of whether the AUMF is on the books), the Supreme Court may very well conclude that the detention authority has expired, even without repeal of the AUMF.
Fourth, this leaves what I call the hybrid law of war and law enforcement issue. In 2011, the United States captured Ahmed Warsame in the Gulf of Aden, and held him aboard a naval ship where he was interrogated for approximately 60 days before being transferred to federal court for trial; the United States employed a similar approach after the 2013 capture of Abu Anas al-Libi, who was held on board a ship for approximately eight days before being transferred to law enforcement custody for prosecution. The initial period of short-term detention was reportedly justified as authorized by the AUMF in both cases; were the AUMF to be repealed, there would not be any established authority for this initial period of pre-arraignment detention. But the government’s potential interest in employing this hybrid approach in the future cannot and should not be the justification for a continuing authorization of the use of military force.
Moreover, it bears noting that the government’s capture authority does not depend on the existence of the AUMF. Domestic law gives FBI agents the authority to make arrests if they have reasonable grounds to believe that the arrestee has committed or is committing a felony. Given the breadth of material support to terrorism laws, it is hard to conceive of a situation in which the United States would want to take a terrorism suspect into custody where there would not be reasonable grounds to believe that the suspect has committed a felony.
Finally, I want to emphasize that a repeal of the AUMF would not in any way preclude the United States Congress from passing separate authorizations to use military force against specific, named groups in the future, if and when there is a determination that law enforcement tools are insufficient to deal with a threat, that the hostilities have reached the level and intensity that justify the declaration of armed conflict, and that there is a need to authorize military force as a matter of first resort. Such an approach – repeal plus case by case authorizations when the facts on the ground justify it – has the important benefit of eliminating the ongoing confusion about what specific entities are covered by the now 13-year-old AUMF, and allowing for public debate, discussion, and buy-in with respect to both the identity of the enemy and the decision to go to war.
Jennifer Daskal joined American University Washington College of Law (WCL) in 2013 as an Assistant Professor of Law. She teaches and writes in the fields of criminal law, national security law, and constitutional law. From 2009-2011, Daskal was counsel to the Assistant Attorney General for National Security at the Department of Justice and, among other things, served on the Secretary of Defense and Attorney General-led Detention Policy Task Force. Prior to joining DOJ, she was the senior counterterrorism counsel at Human Rights Watch. She also spent two years before joining WCL’s faculty as a national security law fellow and adjunct professor at Georgetown Law Center. She has published numerous papers, articles and op-eds, and is the Founding Editor of the blog, Just Security. The views expressed in this post are her own and do not necessarily reflect those of the International Committee of the Red Cross.
This post is part of a four-part series on IHL & the AUMF. Next week, Trevor Keck, one of the ICRC’s Public and Congressional Affairs Officers here in DC, will wrap up the conversation.