It's now been 11 years since Congress passed the AUMF--the legal underpinning for the war on al-Qaida and its affiliates. Is there an endpoint in sight?
This is a big looming issue without a clear answer: As terrorism threats become further and further removed from 9/11 and the Qaida core that perpetrated those attacks, what will become of the legal authority for U.S. counterterrorism actions like detention and targeted killing, which are based heavily on the AUMF? Although it is very unlikely for the foreseeable future that any president would proclaim the war against al-Qaida and its affiliates to be over, the drawdown of U.S. forces in Afghanistan and the further splintering of al-Qaida will exacerbate doubts--including by courts--about the government's continued reliance on that statute.
If continued reliance on the AUMF becomes untenable, one option would be to rely on inherent presidential power under the Constitution to take certain counterterrorism actions in self-defense. Another would be to come up with new legislation to replace the outdated AUMF, though that will be an immensely tricky task. Because neither [former President George W. Bush] nor Obama and the recent Congresses have put a more stable, long-term legal framework in place, such decisions or other options will await future crises and will depend on how the terrorism threat evolves.
Obviously, human-rights groups have been highly critical of U.S. targeted killing policy. Do you see this debate playing out at the U.N. General Assembly in the coming days, where a high-level session on strengthening the rule of law is to be held?
The Obama administration has taken some important steps toward explaining the legal and ethical boundaries of U.S. targeted-killing policy, which has scored many major counterterrorism successes. It remains a source of intense controversy around the world, though, and this controversy will continue for a long time to come. No president will give up this tool, but critics will continue to view it as lawless and counterproductive.
The United States government will never win over global public opinion on this issue, but it should continue to focus on articulating the legal and ethical principles that govern its targeting practices and on working with its allies and partners to ensure that its targeting efforts are integrated within a broader strategy.
This article was originally published in the Council on Foreign Relations
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