The judge is always caught in an intricate dance of power between opinion and the Constitution.
A year has now passed since President Obama pledged, in an address at the National Defense University, to “engag[e] Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” It has been neither refined nor repealed, and neither Congress nor the American people—I’ve checked my messages—has been engaged on the topic.
The reason is simple, and it might be usefully deduced by means of two questions: How would the post-9/11 Authorization for Use of Military Force have to be drafted to justify its use in practice today? And would Congress, if presented with such a resolution, actually vote for it?
The AUMF has been broadly understood to authorize Presidents to do whatever is necessary to defend the nation against terrorism. The AUMF itself is remarkably more parsimonious:
[T]he 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.
Both Presidents Bush and Obama have detached the final phrase (“in order to prevent any future acts”) from the operative clause. That clause limits the AUMF’s reach to those responsible for 9/11. This is not a declaration of war against any terrorist, anywhere, anytime. To justify the full range of actions against the full range of targets today, it would need to be amended in something like the following way:
[T]he President is authorized to use all necessary and appropriate force against
thoseany nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored or subsequently affiliated with such organizations or persons, in orderand to do what he deems necessary to prevent any future acts of internationalterrorism against the United States by any suchnations, organizations or persons.
Small changes; vast implications. They are necessary to cover the expansion of the AUMF from core al-Qaeda to its franchise affiliates—note that the President defines (and refuses to disclose) the enemy—and from “international” terrorism to the claim that it covers the homegrown variety (the “battlefield” includes “Boston”). Crucially, the change from “in order” to “and” alters the last phrase from a qualification to an authorization. That alone changes everything.
Someone—paging Senator Paul—ought to put this version of the AUMF to a vote of Congress. That would be an honest test of the Administration’s claim last year that, because the Al-Nusra Front—which was created more than a decade after 9/11—affiliates with al-Qaeda, the AUMF would justify the introduction of troops into Syria without consulting Congress. (Under approving questioning from Senator Lindsey Graham: And Yemen. And the Congo.) Such an exercise would also reveal that what the Administration actually needs to justify its Bush-era terrorism policies is not to repeal but rather to enlarge the AUMF.
It takes little reflection to see—hope?—that on a de novo consideration no self-respecting Congress would even entertain the authority this one is, de facto, allowing to stand. But voting to repeal the AUMF requires risks and the disruption of accreted interests. Such do programs, laws and agencies, once enacted, outlive their utility: They are harder to undo than they were to enact.
Indeed, the essential problem is that as long as the AUMF is construed to authorize the President to prevent hypothetical future acts as opposed to defeating a concrete existing enemy, its authority can never end because such possibilities can never be foreclosed. That is precisely why members of Congress such as Senator John McCain who have long employed the unlimited war metaphor to characterize anti-terrorism efforts but who have since complained about the expansive interpretation of the AUMF might do well to glare less at the Obama Administration and instead direct their gaze inward.
So might the American people. The security state has become our security blanket, the manifestation of our demand that all risks be precluded at all costs. This is a calculus we do not apply to any other area of policy. If we did, speed limits on interstate highways would be 5 miles per hour. In other areas, understandably not fraught with the emotion of terrorism, we are able to balance risk and cost. In this area, though, we expect total security. (Many students do. I call them securitarians.) The cost—in liberty, mainly, but in treasure too—is predictably immense. To readjust that balance in favor of liberty, we have to accept more risk—a prudent amount—and be willing to recalibrate blame for any future tragedies accordingly.
That itself seems prudent, because the price we are paying in liberty is in fact substantial. In his address a year ago, the President quoted his predecessor James Madison: “No nation could preserve its freedom in the midst of continual warfare.” (Significantly, Madison precedes that quotation by noting that in war “the discretionary power of the Executive is extended.”) That the AUMF has been invoked to justify everything from indefinite detention to electronic surveillance proves the Founder right. But Madison, theorist of—what was it called again?—separation of powers was also a Congressional supremacist on matters of war and peace. He said it was a conflict of interest for the President to be authorized both to start and prosecute wars: “It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.”
That explains why Presidents are reluctant to relinquish the powers given in the AUMF. To be a wartime President is to be a heroic President, and a powerful one too. To lay down powers, especially ones that future occupants of the office would prefer to wield, is, in the punishing eyes of historians, to be a weak executive. But President Obama would be doing an enormous service by seeking a repeal of the AUMF and thereby reducing the powers of his office. He would also, for the record, be keeping a promise that is now a year old.