Jack Goldsmith
By Jack Goldsmith, Ryan Goodman and Steve Vladeck
President Barack Obama has stated that he wants “to begin engaging Congress” over a new Authorization for Use of Military Force (AUMF) against the Islamic State and also that he wants to “right-size and update” the 2001 AUMF “to suit the current fight, rather than previous fights.” It appears that Congress, too, is finally getting serious about putting US counterterrorism operations on a contemporary and more rigorous statutory footing.
There are many politically contested questions about how the government should accomplish these goals — about, for example, whether US ground troops should be banned from Syria and Iraq, how the fight against the Islamic State should be conducted consistent with US policy against Syrian dictator Bashar Al Assad and what rules should govern the targeted killing of US citizens abroad. There are also tricky questions of timing and form — whether, for example, Congress should take up an AUMF against the Islamic State separately from or in conjunction with the right-sizing of the 2001 AUMF against Al Qaida and the Taliban, and whether the lame-duck Congress or the new one should address these issues. We differ among ourselves on some questions. We nonetheless believe that, however they are resolved, an important foundational consensus can be reached on five core principles that should guide any new or revised authorisation of force related to counterterrorism.
— Specify the enemy. A new AUMF should identify which groups the US is fighting and specify the general objectives of the mission.
— Make international law applicable. Any new AUMF should be limited, at a minimum, by governing international law with respect to sovereignty (and thus the places where the president can use force) and the conduct of warfare.
— Increase transparency. Neither Congress nor the American public has a clear idea whom the United States is fighting or where, especially when it comes to forces associated with Al Qaida. Any new AUMF should require the president to identify the groups against which force is used, along with related details, regularly in a report to Congress and, unless strictly required by national security, the American people.
— Sunset all AUMFs. Any new AUMF should be set to expire in 2017. If the 2001 AUMF is not folded into the AUMF for the Islamic State, Congress should separately determine that the 2001 AUMF should sunset in 2017 as well. A 2017 sunset provision does not necessarily indicate that the armed conflict against the specified terrorist groups will be over then.
— Repeal old AUMFs. Once force is expressly authorised against the Islamic State, the 2002 AUMF for Iraq will be unnecessary. The 2001 AUMF can also be repealed if Al Qaida and the Taliban are folded in to the AUMF for the Islamic State.
These five principles emerged from independent proposals recently put forward by two groups of legal experts, whose members included former senior government lawyers in the George W Bush and Obama administrations. WP-BLOOMBERG
By Jack Goldsmith, Ryan Goodman and Steve Vladeck
President Barack Obama has stated that he wants “to begin engaging Congress” over a new Authorization for Use of Military Force (AUMF) against the Islamic State and also that he wants to “right-size and update” the 2001 AUMF “to suit the current fight, rather than previous fights.” It appears that Congress, too, is finally getting serious about putting US counterterrorism operations on a contemporary and more rigorous statutory footing.
There are many politically contested questions about how the government should accomplish these goals — about, for example, whether US ground troops should be banned from Syria and Iraq, how the fight against the Islamic State should be conducted consistent with US policy against Syrian dictator Bashar Al Assad and what rules should govern the targeted killing of US citizens abroad. There are also tricky questions of timing and form — whether, for example, Congress should take up an AUMF against the Islamic State separately from or in conjunction with the right-sizing of the 2001 AUMF against Al Qaida and the Taliban, and whether the lame-duck Congress or the new one should address these issues. We differ among ourselves on some questions. We nonetheless believe that, however they are resolved, an important foundational consensus can be reached on five core principles that should guide any new or revised authorisation of force related to counterterrorism.
— Specify the enemy. A new AUMF should identify which groups the US is fighting and specify the general objectives of the mission.
— Make international law applicable. Any new AUMF should be limited, at a minimum, by governing international law with respect to sovereignty (and thus the places where the president can use force) and the conduct of warfare.
— Increase transparency. Neither Congress nor the American public has a clear idea whom the United States is fighting or where, especially when it comes to forces associated with Al Qaida. Any new AUMF should require the president to identify the groups against which force is used, along with related details, regularly in a report to Congress and, unless strictly required by national security, the American people.
— Sunset all AUMFs. Any new AUMF should be set to expire in 2017. If the 2001 AUMF is not folded into the AUMF for the Islamic State, Congress should separately determine that the 2001 AUMF should sunset in 2017 as well. A 2017 sunset provision does not necessarily indicate that the armed conflict against the specified terrorist groups will be over then.
— Repeal old AUMFs. Once force is expressly authorised against the Islamic State, the 2002 AUMF for Iraq will be unnecessary. The 2001 AUMF can also be repealed if Al Qaida and the Taliban are folded in to the AUMF for the Islamic State.
These five principles emerged from independent proposals recently put forward by two groups of legal experts, whose members included former senior government lawyers in the George W Bush and Obama administrations. WP-BLOOMBERG
