In this April 10, 2013 photo released by the U.S. Army, U.S. Soldiers with Charlie Company, 1st Battalion, 38th Infantry Regiment, 4th Brigade Combat Team, 2nd Infantry Division cross the Tarnak river in the Panjwai district of Kandahar province, Afghanistan on a two-day mission to clear the area of explosives caches. (Sgt. Kimberly Hackbarth, U.S. Army/AP)

The law that forms the foundation of the war on terror is almost obsolete, undermining the legal basis of U.S. counterterrorism operations. On Thursday, the Senate Armed Services Committee will take a long-overdue first step to fix this problem, a development we should all applaud.

On September 14, 2001, Congress passed the Authorization for Use of Military Force (AUMF), authorizing “all necessary and appropriate force against those nations, organizations, or persons” behind the 9/11 attacks. Over a decade later,  al-Qaida, the group that perpetrated the attacks, is on the ropes. But other armed groups — like the Haqqani Network, al-Shabab, and al-Qaida in the Islamic Maghreb — have become targets of the Obama administration’s worldwide counterterrorism efforts. The statute’s explicit reference to the 9/11 attacks, however, means it can’t authorize military action against groups with only superficial links to al-Qaida.

How we justify counterterrorism operations is not just a question for the lawyers — it’s a policy choice with far-reaching domestic and international implications.

In the wake of 9/11, the AUMF provided legal authority and demonstrated congressional support for the U.S. invasion of Afghanistan. But the Bush administration soon abandoned the AUMF, justifying the war on terror on the basis of the president’s inherent constitutional powers as commander-in-chief. These interpretations were soon discredited, both in the court of public opinion and in actual courts, with the Supreme Court repeatedly chastising the Bush administration’s legal approach to counterterrorism.

In a laudable attempt to bring U.S. counterterrorism policy back within the rule of law, the Obama administration has invoked the AUMF as the basis for its global “targeted killing” operations, known by most simply as “drone strikes.” But, like its predecessor, this administration has also stretched the law to serve its purposes, and is currently contemplating even more implausible interpretations of the AUMF. The president and his legal team are pushing us closer to a place where every terrorist is a member of al-Qaida.

How we justify counterterrorism operations is not just a question for the lawyers — it’s a policy choice with far-reaching domestic and international implications. Military might and covert operations alone can’t win the global struggle against al-Qaida and its ideological comrades-in-arms. We need credible arguments too, both to secure support from potential partners and undermine extremist justifications. As former Defense Department general counsel Jeh Johnson argued, “we must guard against aggressive interpretations of our authorities that will discredit our efforts, provoke controversy and invite challenge.” The administration has already read nearly all meaning out of the legal concepts of “imminence” and “hostilities” — another far-fetched legal interpretation might be the last straw for the administration’s legitimacy in the arena of counterterrorism.

Alternatives to the AUMF exist, but they’re not good. Relying on inherent presidential power runs into considerable legal and political difficulties. Legally, this approach would risk intervention by a Supreme Court with a willingness to strike down excessive claims of executive power. Politically, it would be difficult to sustain for a president who ran for office largely on the promise of repudiating Bush-era legal excesses.

A rationale based on the international law of self-defense is similarly unappealing. Although the Obama administration maintains that the AUMF “does not authorize military force against anyone the Executive labels a ‘terrorist,’” using this legal argument would lead to precisely that result, usurping Congress’s constitutionally provided role in national security policy.

For a president in search of a legacy, legislation to manage — and limit — the War on Terror would be a good place to start.

Since the United States plays an important role in setting norms of international conduct, our government should not claim legal rights that it is not prepared to see proliferate around the globe. UN officials recognize that the Obama administration’s “expansive and open-ended interpretation of the right to self-defense threatens to destroy the prohibition on the use of armed force.” CIA director John Brennan noted in 2012 that U.S. drone strikes “are establishing precedents that other nations may follow” — a concern that is already materializing.

With international armed groups unlikely to disappear any time soon, one option rises above the rest: it’s time for a new AUMF. President Obama is understandably reluctant to legally entrench President Bush’s war on terror, but a properly drafted law could provide legitimacy to existing operations and constrain future presidents. Indeed, our concern shouldn’t be a new counterterrorism statute, but what happens in its absence.

A new AUMF should not provide a blanket authorization to kill anyone the president considers an enemy. Instead, it should create a framework for continued counterterrorism operations that addresses which groups are valid targets, the circumstances under which they can be targeted, and where such operations can occur. Unlike the current AUMF, a new law should include an expiration date, but not be legally tied to any specific event.

Passing new legislation is never easy, and certainly won’t be in this Congress. But a concerted effort on the part of the administration could yield real results: a law that keeps America safe and restrains its leaders. For a president in search of a legacy, legislation to manage — and limit — the war on terror would be a good place to start.


Tags: Barack Obama, Middle East, Security, Sept. 11

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  • Futo Buddy

    maybe there is no legitimate way to justify our murdering people in other countries?

  • SteveTheTeacher

    Beau Barnes writes: “In a laudable attempt to bring U.S. counterterrorism policy back within the rule of law, the Obama administration has invoked the AUMF as the basis for its global “targeted killing” operations, known by most simply as “drone strikes.”

    Mr. Barnes should listen to Farea al-Muslimi’s testimony before the Senate. The US government’s “Rule of Law” is what many in Yemen, Afghanistan, Pakistan, and Somalia consider terrorism. Regardless of how the President of congress et. at dress it up, killing innocent civilians because they happen to be near people the government considers a threat, and killing people who are targeted because a computer program has determined that their movements fit a pattern of a terrorist, are crimes against humanity.

    How about bringing us up to the “Rule of Law” by bringing to trial Presidents Bush, Obama, and all those US legislators, military officials, and members of the judiciary who took leadership roles in the crimes against humanity committed in Iraq, Afghanistan, Pakistan, Yemem, Somalia, and Guantanamo.

  • Futo Buddy

    is there any plan to win or end this war? how will we defeat terror? or will this just be a forever war because we are trying to fight ideas with drone strikes?

  • Barry Kort

    Terrorism is but one of ten plagues afflicting Western Civilization. The other nine are: Conflict, Violence, Oppression, Injustice, Corruption, Poverty, Ignorance, Alienation, and Suffering.

    These ten plagues are not independent. They are like a cancer, with each one contributing to the metastasis of the other nine.

    The War on Terror is iatrogenic, meaning it exacerbates, spreads, and even causes recurring instances of the ensemble of the ten cancerous plagues.

  • Bill Bledsoe

    These two department of defense officials formally admitted to War Crimes punishable by death.

    It does not matter if congress authorized the War Crimes or not, if a soldier chooses to follow war crime orders the soldier can be tried and executed for the war crimes.

    These guys just hung themselves.

  • Barry Kort

    The War on Terror

    Terrorist vs. Anti-Terrorist establish their mutually agreeable terms of engagement.

    Terrorist: You have sown fear in me. Now I will repay you by sowing fear in you.

    Anti-Terrorist: I will hunt you down and annihilate you and your kind.

    Terrorist: I am not afraid to die. My violence will strike anywhere, anytime, when you least expect it.

    Anti-Terrorist: I am not afraid of your terrorist attacks. I will redouble my efforts to bring you down.

    Terrorist: There are more where I came from. We will continue to fight your violence with our violence until the end of time.

    Anti-Terrorist: Our violence is holy. We are using authorized and sanctioned violence under the color of law to fight your unlawful, evil violence.

    Terrorist: I believe in my violence even more than you believe in yours. It is my true religion. I have no compassion for your lawful violence.

    Anti-Terrorist: I have no compassion for your unlawful violence.

    Terrorist: Then we are in agreement. Our mutual lack of empathy and our mutual fear ensures that our drama will continue forever and ever.

    Anti-Terrorist: Suits me fine.

    Terrorist: Me too. It gives meaning to my life.

    Anti-Terrorist: Mine, too.

    Terrorist: Then we’re in agreement. We will escalate the mutual and reciprocal violence forever and ever.

    Anti-Terrorist: Roger that.

    Bonus YouTube Cartoon Animation: