By Myriam Feinberg
(Re-Published from Opinio Juris, Sept. 28, 2014) As part of the International Institute for Counter-Terrorism’s 14th Annual World Summit on Counter-Terrorism, a workshop was jointly organised by the ICT and the Institute for National Security and Counterterrorism of Syracuse University (INSCT), as part of the project ‘New Battlefields, Old Laws.’ Started in 2006 to adapt our understanding of laws of war, the NBOL Project brings together scholars and experts who aim to address the challenges for the future of armed conflict.
This year’s NBOL workshop dealt with the way we adapt to new threats and expanding battlefields in counterterrorism and culminated in an Oxford Union style debate on the future of the 2001 AUMF. A video of the debate can be found here.
The debate could not have been timelier as the blogosphere is abuzz following President Obama’s speech on the United States’ ‘Strategy to Counter the Islamic State of Iraq and the Levant (ISIL)’ delivered on the eve of the thirteenth anniversary of the attacks of 11 September 2001. In his speech, the President authorised further air strikes against ISIL militants in Iraq and appeared to authorise air strikes in Syria. He stated that he secured bipartisan support and welcomed further congressional action, yet also made clear that he did not need further authorisation from Congress to launch the strike. Other official statements made clear that the administration was relying on the 2001 Authorization to Use Military Force, which authorized the use of force against those responsible for the September 11, 2001, as a justification for striking ISIL. This comes despite a national security address at the US Military Academy in May 2013, when Obama said he wanted to repeal the 2001 AUMF.
At the NBOL workshop, Professor Nathan A. Sales of Syracuse University College of Law and Professor Jennifer Daskal of American University Washington College of Law debated the following motion: ‘This House believes that the 2001 AUMF should be amended to authorize force against future terrorist threats’.
They join a long list of scholars and experts who have called on the US administration to either amend, update, or repeal the 2001 AUMF and to clarify the basis for its action against ISIL and other terrorist groups that did not take part in the September 11th attacks – and in many cases did not even exist at the time of the attacks. See for instance Jens David Ohlin here, Deborah Pearlstein here, Peter Spiro here, Jack Goldsmith here, and Jennifer Daskal here.
While both Sales and Daskal expressed concerned with the current legal framework dealing with terrorist threats in the United States, their opinion differed as to the suitability of the AUMF to deal with emerging threats.
Nathan Sales, who argued in favour of the motion, first discussed three possible options for a new legal framework against terrorist groups: the first is a group specific AUMF which would name specific organizations against which the President is authorised to use force. The second is a general statutory framework that allows the President himself to designate groups against which to use force. The third option is the absence of statute and the reliance on the inherent authority of the President under Article II of the US Constitution.
Nathan Sales then pointed to the legal uncertainty of the 2001 AUMF, which would give insufficient authority to the President to use force against groups with no links to al Qaeda and generally stated that the 2001 AUMF is growing obsolete and should be replaced by a statute that would allow the President to designate future terrorist threats.
He based his argument on the idea that future United States presidents are likely to use military force to respond to future terrorist threats and that the use of military force should therefore be regulated through a legal framework. This legal framework would take the form of a flexible AUMF that would allow the President to designate groups as threats emerge. For Sales, the flexibility of designation should however be restrained by certain substantive and procedural criteria, including pre-designation consultation with Congress and some public notice. He suggested also that such a Statute could be tied to international law principles including the right of self-defence …
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Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University.