Revisiting a Stale Counterterrorism Law

Within days of the 9/11 attacks, Congress authorized U.S. military and intelligence agencies to kill and detain terrorists. It is time to revise that authority on matters like detentions and drone attacks, says CFR’s John B. Bellinger III.

September 01, 2011

To help readers better understand the nuances of foreign policy, CFR staff writers and Consulting Editor Bernard Gwertzman conduct in-depth interviews with a wide range of international experts, as well as newsmakers.

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Homeland Security

Terrorism and Counterterrorism

Nearly a decade after 9/11, the United States still relies on the 2001 Authorization for the Use of Military Force (AUMF) for the killing and detention of those considered responsible for or associated with the terrorist attacks. But CFR national security law expert John Bellinger says it is becoming increasingly difficult for the Obama administration to justify some of its counterterrorism operations under this limited statutory authority. It has been used in defense of actions including drone attacks on individuals as well as the targeting of groups in Yemen and Somalia that may have "only the most tenuous affilitation or association" to the 9/11 attack. A revised AUMF should clarify those operations as well as the issue of detention, specifically "which individuals can be detained, for how long, and subject to what processes." There also needs to be greater effort at the international level, he adds, to "fill the gaps in the law that covers conflicts between states and non-state actors."

Can you summarize some of the changes or clarifications you’d like to see to the 2001 AUMF?

The AUMF, which is a very short statutory authority for the United States to use force against those who planned, committed, or aided those responsible for 9/11, is now ten years old and needs to be revised in two ways to take account of the realities of the country’s fight against terrorists. First, the military is now using force in a number of countries outside of Afghanistan against individuals and groups that have only the most tenuous affiliation or association to those who planned, committed, or carried out the 9/11 attacks. As time goes on, we will continue to be using force to protect ourselves against groups that are attacking us, or planning attacks against us, that have even less of an affiliation. I’m talking about groups in Yemen or Somalia or other places. So, the AUMF needs to be revised to take into account the realities of our real military operations around the world.

Second, I have long argued that as long as we’re relying on the AUMF as our legal justification to detain members of al-Qaeda and the Taliban--essentially indefinitely, as the statute makes absolutely no mention of the word "detention"--then it’s appropriate for Congress to be clearer regarding which individuals can be detained, for how long, and subject to what processes.

Would you support taking out any language that mentions the 9/11 attacks?

A revised AUMF can certainly reference the 9/11 attacks. But my view is that it’s not intended to be an open-ended legal authority to carry out military operations against terrorists or others all around the world, as some critics suggest. It is important to bring the statutory authority in line with the reality of our military operations. Administration lawyers at the Defense Department and the Justice Department have to strain very hard when reviewing the legal authority for our military or intelligence agencies to go after certain individuals or groups to find that affiliation with the original 9/11 planners.

If [the Obama administration] is not already over the line today, as far as seeking out every last bit of authority from the ten-year-old AUMF, then it is likely to happen very soon.

The point is not to have a huge unrestricted authority that opens up new wars, but simply to make plain that our military and intelligence services have clear statutory authority to do what it is they are already doing today. It would be possible to rely on constitutional authority; I have absolutely no question about that. But it is useful and important for Congress to be authorizing what government agencies are doing. If they are not already over the line today, as far as eking out every last bit of authority from the ten-year-old AUMF, then it is likely to happen very soon.

You have written that the Obama White House has sought to use the AUMF and not any constitutional authority to wage the war on terror. Can you elaborate on that?

It’s increasingly understandable that the Obama administration, particularly when the differences between its counterterrorism policy and the Bush administration policies are being seen as fewer and fewer, wants to emphasize the few differences that do remain. One of those over the past two and half years is that the Obama administration has wanted to rely only on statutory authority for its counterterrorism operations, particularly in the area of detention, and not rely upon constitutional authority, which might smack of the excesses of constitutional assertions by the Bush administration. But, this decision is increasingly beginning to and will constrain them in the future, as our military is being forced to carry out counterterrorism operations against individuals and groups who don’t have an association with the groups who carried out 9/11. The AUMF is getting increasingly thin to rely on as a pure statutory matter.

How do you view the targeting of Americans like Anwar al-Awlaki (WSJ) and Kamal Derwish (PBS) in U.S. counterterrorism operations? What constitutional protections are they afforded in that context?

The U.S. government has the authority to use force against its own nationals, including to kill them, if they are planning attacks against us. What U.S. citizens do have, wherever they are in the world, are constitutional rights that a non-U.S. national may not have. Now, the contours of those constitutional rights to liberty, life, and due process are somewhat unclear and have not been thoroughly tested in the courts. But, at a minimum, most people would agree that the U.S. government does have certain constitutional obligations to provide greater due process for using force against its own nationals. We don’t know from the outside exactly what process the U.S. government might be using, but I would be confident that before targeting an American for a drone strike, for example, the U.S. government agencies, because of these constitutional rights, would be exercising even greater care.

Now, that’s the sort of due process that is presumably at least observed in practice, if not written down as a matter of policy inside the U.S. government. It’s the sort of thing that if we see the U.S. government increasingly having to target its own nationals around the world, perhaps Congress could include [it] in statute. It’s been noted that there is a great irony that the United States has to go to the Foreign Intelligence Surveillance Courts to conduct electronic surveillance of a U.S. national, but is not required to go to any court in order to use lethal force against him. The Foreign Intelligence Surveillance Act reflected a concern on the part of Congress during the 1970s that Americans were being subjected to electronic surveillance without sufficient due process. Certainly, Congress could conclude that if it sees the executive branch regularly targeting Americans, they might want to include clear due process standards by statute. I wouldn’t necessarily urge that, because I don’t think that this has become a regular, consistent issue.

There is a great irony that the United States has to go to the Foreign Intelligence Surveillance Courts to conduct electronic surveillance of a U.S. national, but is not required to go to any court in order to use lethal force against him.

Do you think there is a political window in the near future for an update to the AUMF?

Starting nine or ten months ago, there did not seem to be--either in Congress or in the administration--much interest at all in revising the AUMF. Now, we are seeing some acknowledgement in Congress that the AUMF should be revised. The administration is essentially split, with the operators (i.e. Pentagon, CIA) recognizing, and lawyers within the administration recognizing, that the AUMF should be revised as a matter of good government and clear legal authority for their operations. But there are political concerns inside the White House that supporting a revision to the AUMF would be opposed by a good part of the administration’s base who oppose a broadening of the war. So, there is a greater interest in a revision of the AUMF, both inside Congress and inside the administration, and recognition that this really would be good government. But it’s not clear yet whether a bipartisan group, with the support of the administration, could come together to create a good revision.

Beyond an updated AUMF, do you think there are any larger changes needed at the constitutional level or with regard to the War Powers Resolution? These laws were written when the predominant paradigm was inter-state conflict.

On the international plane, there needs to be greater examination of the issue, or a development of new rules that govern conflicts between states and non-state actors. There has been, over the last ten years-- notwithstanding significant unhappiness about the Bush administration’s policies--an acknowledgement that the Geneva Conventions of 1949 do not neatly fit current conflicts between states and non-state actors. The president of the International Committee of the Red Cross (ICRC), in a 2010 address, acknowledged that while the Geneva Conventions primarily served the purpose for which they were created, there are a number of gaps in their coverage, particularly with respect to detention. The ICRC’s quadrennial conference this fall [in November] will focus, in part, on how those gaps might be filled. So, on the international plane, more work does need to be done by states, by academics, by NGOs to fill the gaps in the law that covers conflicts between states and non-state actors.

What about larger changes at the domestic level?

As I mentioned, I think the AUMF should be revised, or a different statute should be provided [for] clearer statutory authority and due process for what has essentially become indefinite detention. Civil liberties groups don’t like that because they think that would be to codify indefinite detention without trial. On the other hand, since indefinite detention without trial clearly seems to be happening anyway, in my view it would be preferable to have Congress provide statutory authority for it, rather than simply throw it up as a jump ball for the courts to figure out what the rules are. With respect to a different statute, it’s long been acknowledged that the War Powers Resolution does not fit the kinds of conflicts that we see in modern warfare, and some of those problems have been identified by the Christopher and Baker Commission from a few years back. But both the Bush and Obama administrations chafed under the War Powers Resolution and probably will not be inclined to support changes to it.