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A Statutory Framework for Next-Generation Terrorist Threats

A Statutory Framework for Next-Generation Terrorist Threats

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Published by Hoover Institution

Since September 18, 2001, a joint resolution of Congress known as the Authorization to Use Military Force (AUMF) has served as the primary legal foundation for the “war on terror.” In this essay we explain why the AUMF is increasingly obsolete, why the nation will probably need a new legal foundation for next-generation terrorist threats, what the options are for this new legal foundation, and which option we think is best.

Since September 18, 2001, a joint resolution of Congress known as the Authorization to Use Military Force (AUMF) has served as the primary legal foundation for the “war on terror.” In this essay we explain why the AUMF is increasingly obsolete, why the nation will probably need a new legal foundation for next-generation terrorist threats, what the options are for this new legal foundation, and which option we think is best.

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Published by: Hoover Institution on Feb 25, 2013
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04/06/2014

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A Statutory Framework for Next-Generation Terrorist Threats 
Hoover Institution
 
 
Stanford University
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b Rbrt Chsn, Jack Glsmth, Matthw C. Waxman, an Bnjamn WttsJan Prkns Task Frc n Natnal Scrt an Law
www.hoover.org/taskforces/national-security 
A NATioNAL SeCuRiTy ANd LAW eSSAy
A Stattr Framwrkr Nxt-GnratnTrrrst Thrats
Since September 18, 2001, a joint resolution o Congress known as theAuthorization or Use o Military Force (AUMF) has served as the primary legaloundation or the “war on terror.
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In this essay we explain why the AUMF isincreasingly obsolete, why the nation will probably need a new legal oundationor next-generation terrorist threats, what the options are or this new legaloundation, and which option we think is best.The AUMF authorizes the president to “use all necessary and appropriateorce against those nations, organizations, or persons he determines planned,authorized, committed, or aided the terrorist attacks that occurred onSeptember 11, 2001, or harbored such organizations or persons, . . .” Theauthorization o “orce” in the AUMF is the main legal basis or the president’spower to detain and target members o al Qaeda and the Taliban. In addition,in the years since the resolution took eect, Congress, two presidentialadministrations, and the lower ederal courts have interpreted the “orce”authorized by the AUMF to extend to
members or substantial supporters of the
Taliban and al Qaeda,
and associated forces
.
2
The main reason the AUMF is becoming obsolete is that the conict itdescribes
which on its ace is one against the perpetrators o theSeptember 11 attacks and those who harbor them
is growing less salientas U.S. and allied actions degrade the core o al Qaeda and the U.S. militarydraws down its orces fghting the Taliban in Aghanistan. At the sametime that the original objects o the AUMF are dying o, newer terrorist
 
A Statutory Framework for Next-Generation Terrorist Threats 
2
 
Hoover Institution
 
 
Stanford University
groups that threaten the United States and its interests are emerging aroundthe globe. Some o the terrorist groups have substantial ties to al Qaeda andthus can be brought within the AUMF by interpretation. For example, thepresident has been able to use orce against al Qaeda in the Arabian Peninsula,a terrorist organization in Yemen, because it is a supporter or associated orceo al Qaeda. But this interpretive move is increasingly difcult as newerthreatening groups emerge with dimmer ties, i any, to al Qaeda. As a result,we are reaching the end point o statutory authority or the president tomeet terrorist threats.
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We should emphasize at the outset that we do not claim that the increasinglyobsolete AUMF demands immediate amendment or alteration. We do notmake this claim because we lack access to classifed inormation that wouldindicate the ull nature o the terrorist threats the nation aces, or theirconnection to al Qaeda, or the nation’s ability to meet the threat given currentlegal authorities. We also recognize that any new orce authorizations carrysignifcant strategic and political consequences beyond their immediateoperational consequences. We nonetheless believe strongly
based on publicmaterials and conversations with government ofcials
that the AUMF’suseulness is running out, and that this trend will continue and will demandattention in the medium term i not in the short term. Our aim is to contributeto the conversation the nation will one day have about a renewed AUMF byexplaining why we think one will be necessary and the possible shape itmight take.Part I o this paper explains in more detail why the AUMF is becoming obsoleteand argues that the nation needs a new legal oundation or next-generationterrorist threats. Part II then describes the basic options or this new legaloundation, ranging rom the president’s Article II powers alone to a variety ostatutory approaches, and discusses the pros and cons o each option, andthe one we preer. Part III analyzes additional actors Congress should considerin any such ramework.
I. The Growing Problem of Extra-AUMF Threatsand the Need for a New Statutory Framework
In this Part we explain why the AUMF is growing obsolete and why acombination o law enorcement and Article II authorities, standing alone, isnot an adequate substitute.
 
A Statutory Framework for Next-Generation Terrorist Threats 
3
 
Hoover Institution
 
 
Stanford University
1. The Growing Obsolescence of the AUMF 
The September 2001 AUMF provides or the use o orce against the entityresponsible or the 9/11 attacks, as well as those harboring that entity. Ithas been clear rom the beginning that the AUMF encompasses al Qaeda andthe Aghan Taliban, respectively. This was the right ocus in late 2001, and or aconsiderable period thereater. But or three reasons, this ocus is increasinglymismatched to the threat environment acing the United States.
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First, the original al Qaeda network has been substantially degraded bythe success o the United States and its allies in killing or capturing the network’sleaders and key personnel. That is not to say that al Qaeda no longer poses asignifcant threat to the United States, o course. The inormation available in thepublic record suggests that it does, and thus nothing we say below should beread to suggest that orce is no longer needed to address the threat al Qaedaposes. Our point is simply that the original al Qaeda network is no longer thepreeminent operational threat to the homeland that it once was.Second, the Aghan Taliban are growing increasingly marginal to the AUMF. Asnoted above, the AUMF extended to the Taliban because o the sae harbor theyprovided to al Qaeda. That rationale makes ar less sense a dozen years later,with the remnants o al Qaeda long-since relocated to Pakistan’s FATA region.This issue has gone largely unremarked in the interim because U.S. and coalitionorces all along have been locked in hostilities with the Aghan Taliban, andthus no occasion to reassess the AUMF nexus has ever arisen. Such an occasionmay well loom on the horizon, however, as the United States draws downin Aghanistan with increasing rapidity. To be sure, the United States no doubtwill continue to support the Aghan government in its eorts to tamp downinsurgency, and it also will likely continue to mount counterterrorism operationswithin Aghanistan. It may even be the case that at some uture point, the Talibanwill again provide sae harbor to what remains o al Qaeda, thereby at leastarguably reviving their AUMF nexus. But or the time being, the days o directcombat engagement with the Aghan Taliban appear to be numbered.I the decline o the original al Qaeda network and the decline o U.S. interest inthe Aghan Taliban were the only considerations, one might applaud ratherthan ret over the declining relevance o the AUMF. There is, however, a thirdconsideration: signifcant new threats are emerging, ones that are not easilyshoehorned into the current AUMF ramework.

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Edgar Swindenhauser added this note
A very murky, very dangerous enterprise to empower ANY president in such manner, except temporarily and with a clear mandate due to emergency conditions.
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