The AUMF Should Be Amended, Not Voided
The AUMF is still necessary to fight terror
June 17, 2013
The fight against Islamist terrorists is a tale of two conflicts. The first is a straight-forward campaign pursued by the U.S. military and law enforcement forces, which apprehend or kill jihadists. The second is the complex domestic legal battle over the appropriate responses of a law-based democratic society toward shadowy threats posed by stateless terrorist networks. This second front includes the statutory authority for the use of deadly force against terrorists.
At the heart of America's campaign against terrorism since the 9/11 attacks on the World Trade Center and Pentagon lies the Authorization for Use of Military Force. The so-called AUMF was passed overwhelmingly by both houses of Congress and signed into law by President George W. Bush. Now its critics want it repealed — a grave mistake. It should be amended, not voided.
The passage of the AUMF provided the basis for American intervention into Afghanistan to neutralize al-Qaida and its allied terrorist groups. It was also used to justify the attack on Saddam Hussein's Iraq. As those two conflicts wind down, President Barack Obama has relied on AUMF for legal justification to launch lethal airstrikes on jihadists who pose a danger to the United States and its citizens. It is these missile attacks, carried out mostly by remotely piloted aircraft (or drones), which angers the AUMF "repealers." They contend that the law allows the White House to conduct extrajudicial killings against merely suspected terrorists in Pakistan, Yemen and elsewhere.
Repealing AUMF is too drastic, premature, and wrongheaded. The looming threat to Americans, which could include a weapon of mass destruction such as a nuclear device, militates against scuttling laws that protect us. The expanding Islamist movements in Africa and the Middle East argue against our declaring victory after our leave-taking from Iraq and Afghanistan and legally disarming ourselves against future terrorist assaults.
It is far better to amend AUMF with legislation to set up a special court to oversee the drone strikes on terrorists. In turn, the Congressional intelligence and judiciary committees would exercise oversight over this special court, which would have to be closed to the public.
Fortunately, there is a model on which to found such a court. Thirty-five years ago, the House and Senate passed the Foreign Intelligence Surveillance Act, or FISA, which was amended in 2008 to modernize its implementation. The FISA court screens applications from the U.S. Justice Department for intelligence collection activities on Americans and foreigners.
A FISA-styled court to review applications calling for drone attacks would ensure protection of individual liberties as much as possible in the age of terrorism. This counterterrorism court could determine the imminence of a threat, decide if capture is a feasible alternative and judge whether the laws of war are being observed. Moreover, the oversight exercised by the Congressional committees would broaden the basis of support among the American people for the taking down of terrorists who strive to murder Americans. Amend rather than appeal is a thoughtful way to respond to concerns that the president and his aides are acting without legal review.