It is not accurate to claim that Obama wants to strip the United States of its power to fight terrorism, or to imply that he wants to repeal the AUMF right away. Here are President Obama’s exact words regarding this authorization of force:
I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.
The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.
So Obama does want to reshape the AUMF, but his immediate plans do not include repeal. They include recognizing the substantial gains America has made towards crippling al Qaeda and developing a legal framework that makes sense in light of that reality — one that will still enable us to fight terrorists without relying on the very broad powers granted by the AUMF.
There should be little question that the current AUMF is too broad. Enacted by reeling lawmakers in the immediate aftermath of 9/11, and signed into law just one week after those attacks, the AUMF gives the president sweeping authority to identify and target terrorist threats with little or any external checks on this authority. In the AUMF’s words, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
As a constitutional matter, the president’s powers are at their apex when he acts pursuant to an express grant of authority from the Congress. As Justice Robert Jackson famously explained, the validity of a president’s actions made pursuant to congressional authorization are entitled to the “strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.” Accordingly, there are minimal limits on what President Obama — or any future president — may do within the bounds of the AUMF’s text. The president may unilaterally determine that a family in Pakistan once harbored an al Qaeda leader, and then bring America’s military might to bear against this family. Such breathtaking power may have seemed appropriate in September of 2001, when the nation was still in mourning and the scope of the threat facing us was still unclear, but it is not an appropriate power to permanently place in the hands of a single person.
The Obama Administration, for its part, imposed its own limits on when it will invoke this power to kill a suspected terrorist. Among them, “[t]he policy of the United States is not to use lethal force when it is feasible to capture a terrorist suspect,” there must be “[n]ear certainty that non-combatants will not be injured or killed,” and lethal force will be used “only against a target that poses a continuing, imminent threat to U.S. persons” (although it’s worth noting that the administration has also defined the word “imminent” broadly in the past). But it is not at all clear that the Constitution requires future presidents to abide by these limits, and unlikely that any court would step in to enforce them absent a significant change in federal law. As a practical matter, this administration’s rules probably just function as limits the Obama Administration places on itself so long as it chooses to abide by them.
So, ultimately, the question Congress needs to ask is whether the permanent scope of presidential war-making power should be fixed by the immediate response of a wounded nation struck by an unprecedented attack with no ability to determine right away whether a series of similar attacks would soon follow. Should President Hillary Clinton have this sweeping power? How about President Ted Cruz?
Or, alternatively, should Congress recognize that the world has changed for the better in the last 12 years? Osama bin Laden is dead and al Qaeda is far weaker than it was in 2001. American law should recognize this reality.