Obama Will Never End the War on Terror

The president stands to leave an open-ended conflict to his successor.

President Barack Obama and First Lady Michelle Obama attend the Marine Barracks evening parade in Washington, Friday on July 24, 2009.  This official White House photograph is being made available for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way or used in materials, advertisements, products, or promotions that in any way suggest approval or endorsement of the President, the First Family, or the White House.
The White House
Michael Hirsh James Oliphant
See more stories about...
Michael Hirsh James Oliphant
Feb. 27, 2014, 4 p.m.

Joint Spe­cial Op­er­a­tions Com­mand launched four Hell­fire mis­siles in­to a con­voy in cent­ral Ye­men in Decem­ber, killing 12 people. U.S. of­fi­cials ini­tially claimed they were tar­get­ing Shawqi Ali Ahmad al-Badani, an al­leged Qaida op­er­at­ive, and even Hu­man Rights Watch ac­know­ledged that some ter­ror­ists may have been present. But last week, an of­fi­cial re­port by the New York-based ad­vocacy group con­cluded the mis­siles ac­tu­ally hit a Ye­meni wed­ding pro­ces­sion bring­ing the bride and fam­ily mem­bers to the groom’s ho­met­own, and that very likely “some if not all those killed and wounded were ci­vil­ians.”

In truth, no one really knows what happened that day in Ye­men, or who the en­emy really was. The Obama ad­min­is­tra­tion, of course, would not dis­cuss the de­tails of the cov­ert op­er­a­tion — and it has done little pub­licly to jus­ti­fy the drone at­tack. The news of the Hu­man Rights Watch re­port pinged through the Wash­ing­ton echo cham­ber for a day, then faded away — just the latest wisp of in­form­a­tion in a shad­owy con­flict that Pres­id­ent Obama pledges to end but seems ut­terly un­will­ing to close.

Judging from the polls, a weary, in­ward-look­ing Amer­ic­an pub­lic has long since stopped caring much about what used to be called the “war on ter­ror,” es­pe­cially com­pared with is­sues like eco­nom­ic stag­na­tion, or gay mar­riage, or im­mig­ra­tion. What began as one hor­rif­ic at­tack 13 years ago and a simple, 60-word Au­thor­iz­a­tion for the Use of Mil­it­ary Force three days later has morph­ed all but un­noticed in­to a war with no name or para­met­ers — against an en­emy that the gov­ern­ment will no longer even of­fi­cially identi­fy, on bat­tle­fields that didn’t ex­ist when the meas­ure hur­riedly passed Con­gress.

The grave but very real danger is that this strangest of wars will nev­er end.

And as the Ye­men strike sug­gests, the war hardly ap­pears to be wind­ing down. Nor do U.S. forces seem to be get­ting much bet­ter at avoid­ing “col­lat­er­al dam­age.” The grave but very real danger is that this strangest of wars will nev­er end, cer­tainly not be­fore the ex­pir­a­tion of Obama’s second term. And his suc­cessors may be left with nearly the en­tire un­re­solved mess: an open-ended war au­thor­iz­a­tion and in­cho­ate rules for drone and spe­cial op­er­a­tions, the prom­ised-but-nev­er-car­ried-through clos­ing of Guantá­namo Bay, and a Na­tion­al Se­cur­ity Agency that’s still not sure whom or what it can spy on.

No one has been more aware of this prob­ab­il­ity than the pres­id­ent him­self, who has reg­u­larly warned that Amer­ica must get off a “per­petu­al war­time foot­ing,” de­clar­ing in a land­mark speech last year, “We must define the nature and scope of this struggle, or else it will define us.”¦ Un­less we dis­cip­line our think­ing, our defin­i­tions, our ac­tions, we may be drawn in­to more wars we don’t need to fight, or con­tin­ue to grant pres­id­ents un­bound powers.”

And yet that’s what is hap­pen­ing. Throughout the vi­ol­ence-torn Middle East and Cent­ral Asia, a re­born al-Qaida is sprout­ing new af­fil­i­ates like myth­ic­al dragon’s teeth and de­fin­ing the struggle anew. Mean­while, the Obama ad­min­is­tra­tion re­mains con­flic­ted over policy and un­sure how to pro­ceed — as evid­enced by an­oth­er mys­ter­i­ous news leak re­cently, one that in­dic­ated the gov­ern­ment was locked in an in­tense in­tern­al de­bate over wheth­er to kill an Amer­ic­an cit­izen over­seas (rumored to be a ji­hadi in Pakistan). Des­pite Obama’s pledge nearly a year ago, in that widely covered May 2013 speech, to “re­fine, and ul­ti­mately re­peal” the AUMF, sources in­side the ad­min­is­tra­tion and on Cap­it­ol Hill say ser­i­ous ne­go­ti­ations to get it done have not even be­gun with this ever-re­cal­cit­rant Con­gress.

Lead­ing voices on Cap­it­ol Hill say they are ut­terly mys­ti­fied by the White House’s in­ac­tion — and are get­ting more and more frus­trated by it. “If any­one un­der­stands what their policy is, please send me a note. It has been very con­fus­ing,” Rep. Mike Ro­gers, chair­man of the House In­tel­li­gence Com­mit­tee, told Na­tion­al Journ­al.

Barack Obama, in oth­er words, ap­pears to lack the will to turn off the war ma­chine. His long-stated aim to be the pres­id­ent who ended two wars for good is very likely to go un­met. Worse, he will leave be­hind a struggle the coun­try won’t be con­sti­tu­tion­ally or mor­ally equipped to fight. Rather than de­vel­op­ing a “code” for fu­ture pres­id­ents — as he’s said he wants to do — this pres­id­ent could well end up leav­ing his suc­cessor an open-ended li­cense to con­duct per­man­ent drone war­fare, or to place Amer­ic­an boots on the ground any­where in the world.

Throughout the vi­ol­ence-torn Middle East and Cent­ral Asia, a re­born al-Qaida is sprout­ing new af­fil­i­ates like myth­ic­al dragon’s teeth and de­fin­ing the struggle anew.

Ro­gers and some oth­er crit­ics say the pres­id­ent may even be in deni­al about the on­go­ing real­ity of the war, per­haps be­cause he’s a little too eager to “com­plete his nar­rat­ive” about decim­at­ing al-Qaida. “Just be­cause we got Osama bin Laden doesn’t mean the or­gan­iz­a­tion went away,” Ro­gers says. “When someone is shoot­ing at you, and you stand up and de­cide the shoot­ing is over, that doesn’t mean they stop shoot­ing at you. And it is in­cred­ibly na­ive to be­lieve that be­cause you say the war on ter­ror is over, [the ter­ror­ists] be­lieve it is over.” To fo­cus on the in­roads against “core” al-Qaida in Pakistan while fail­ing to come up with set rules of en­gage­ment against new­er af­fil­i­ated groups else­where, Ro­gers says, is “like say­ing the Mc­Don­ald’s in Michigan is dif­fer­ent than the headquar­ters in Illinois. It’s the same food, the same goals, the same ends.”

Obama will also be­queath to his suc­cessor an­oth­er al­most Or­wellian oddity, one that may be un­pre­ced­en­ted in Amer­ic­an his­tory. The United States is now at war with an en­emy that it will not of­fi­cially ac­know­ledge or name. As new ji­hadist groups spring up in war-torn Syr­ia and oth­er emer­ging safe havens, the ad­min­is­tra­tion has made the list of so-called as­so­ci­ated forces of al-Qaida clas­si­fied.

The of­fi­cial reas­on is that the U.S. mil­it­ary and in­tel­li­gence ap­par­at­us doesn’t want to tip off the new bad guys that they’re about to be at­om­ized in a drone strike or laser-tar­geted by SEAL Team Six. But some long­time U.S. strategists, such as former Na­tion­al Se­cur­ity Ad­viser Brent Scow­croft, worry about the lack of clear rules gov­ern­ing this latest evol­u­tion in what Har­old Koh, Obama’s former State De­part­ment gen­er­al coun­sel, calls “the Forever War.” “There is something very troub­ling about how we have be­come po­lice­man, judge, jury, and ex­e­cu­tion­er, all rolled up to­geth­er,” Scow­croft says.

Former par­ti­cipants in the war on ter­ror­ism, such as John Bellinger, who was chief coun­sel to the Na­tion­al Se­cur­ity Coun­cil on 9/11, finds the con­flict’s new, amorph­ous shape to be “ex­tremely odd.”

Says Bellinger: “I cer­tainly un­der­stand that groups may change and people may move from group to group. And our people may not want to alert the groups be­ing tar­geted. But I don’t think that pre­vents one from hav­ing a ba­sic list [of en­emies], at least with an as­ter­isk at the end in­dic­at­ing there may be oth­ers.” The main prob­lem, he adds, is that “as the AUMF has got­ten longer and longer in the tooth, the de­bate in­side the ad­min­is­tra­tion is get­ting more and more com­plex as to wheth­er some group or some per­son is ac­tu­ally as­so­ci­ated with al-Qaida,” the only group with which Amer­ica is still of­fi­cially at war and to which the AUMF spe­cific­ally ap­plies. Guantanamo Bay (BREN­NAN LINS­LEY/AFP/Getty Im­ages)

So while Obama might be re­luct­ant to ap­ply force bey­ond drones and spe­cial-op­er­a­tions teams in parts of the Mideast, Cent­ral Asia, and North­ern Africa, it’s en­tirely plaus­ible that a less cau­tious com­mand­er in chief could de­cide to in­vade Syr­ia or re­in­vade Afgh­anistan or Ir­aq, or to de­ploy drones less dis­crim­in­at­ingly — all by re­ly­ing on an out­dated war au­thor­iz­a­tion. Un­less Con­gress writes new rules. And Obama signs them. Something neither ap­pears will­ing to do.

The ad­min­is­tra­tion coun­ters that it has already de­veloped the “clear guidelines, over­sight, and ac­count­ab­il­ity” that Obama prom­ised last year. Still, the White House has barely en­gaged Con­gress. “At this stage, we are dis­cuss­ing this is­sue and look for­ward to en­ga­ging the Con­gress more ro­bustly as we re­fine our think­ing,” Na­tion­al Se­cur­ity Coun­cil spokes­wo­man Caitlin Hay­den told Na­tion­al Journ­al.

BEND­ING AND BREAK­ING

The ad­min­is­tra­tion’s in­ac­tion stems in part from the way Obama has boxed him­self in. He has said he doesn’t want to sign a new con­gres­sion­al force au­thor­iz­a­tion that may be bet­ter equipped to deal with mod­ern ter­ror­ism threats, be­cause he wor­ries about pro­long­ing the war. But without one, the ad­min­is­tra­tion has been forced to stretch and dis­tort the 9/11 au­thor­iz­a­tion to new fronts in Somalia and Ye­men in ways that could en­cour­age an­oth­er pres­id­ent to push the leg­al en­vel­ope even fur­ther.

The res­ult is that the war, as it stands, is be­ing fought in a state of leg­al limbo, one that wor­ries both con­ser­vat­ives, who fa­vor re­writ­ing the 9/11 AUMF, and lib­er­als, who fa­vor re­peal­ing it. And it has giv­en ad­min­is­tra­tion of­fi­cials no choice but to forge ahead, some­times seem­ingly mak­ing up the rules as they go — as evid­enced per­haps by the Decem­ber strike in Ye­men.

That in­tern­al de­bate achieved al­most tra­gi­com­ic di­men­sions re­cently when The Wash­ing­ton Post re­por­ted that fol­low­ing the de­cision of Ay­man al-Za­wahiri, the nom­in­al lead­er of al-Qaida’s core in Pakistan, to ex­com­mu­nic­ate an ul­tra­vi­olent group call­ing it­self “Is­lam­ic State in Ir­aq and Syr­ia” or IS­IS, U.S. of­fi­cials were weigh­ing wheth­er to drop that group from the U.S. en­emies list. That, says crit­ics, is the ul­ti­mate mis­take in al­low­ing al-Qaida to define the con­flict. “It’s con­ceiv­able that al-Qaida might ‘fire’ them pub­licly while privately con­tinu­ing to have lots of deal­ings with them,” Bellinger says.

The only an­swer to the evolving new threat, these crit­ics say, is to up­date the au­thor­iz­a­tion to ad­dress the chan­ging nature of al-Qaida and its af­fil­i­ates. Obama ap­pears to be leery of try­ing with a Con­gress that, even count­ing fel­low Demo­crats, most re­cently re­fused him ap­prov­al for strikes on Syr­ia in re­tali­ation for chem­ic­al-weapons use.

The new term be­ing used: “elong­ated im­min­ence,” which means that a pres­id­ent doesn’t have to deem the coun­try un­der im­me­di­ate threat of at­tack be­fore act­ing on his or her own.

Giv­en the choice between re­peal and leav­ing the cur­rent law in place, most in the White House and Con­gress have op­ted for let­ting in­er­tia carry the day. “I was one of the people who kicked off the de­bate four years ago that the AUMF ought to be re­vised,” says Bellinger, who also served as gen­er­al coun­sel to the State De­part­ment in the mid-2000s when the first rules for war­fare against ter­ror­ist groups were be­ing dis­cussed. “It ought to fit what we’re do­ing now. A 60-word stat­ute writ­ten by Con­gress three days after 9/11 needs to be more pre­cise. But that re­quires good gov­ern­ment, and I’ve come to be­lieve it’s im­possible for our Con­gress to do good gov­ern­ment. It’s prob­ably bet­ter just to leave this an­cient stat­ute on the books.”

In a series of speeches dat­ing back two years, ad­min­is­tra­tion of­fi­cials have sought to point the way to an even­tu­al end to the war by dis­tin­guish­ing “core al-Qaida” or “as­so­ci­ated groups” that are “or­gan­ized” and spe­cific­ally tar­get Amer­ic­ans from oth­er less stra­tegic threats. Among the lat­ter are “lone wolves” along the lines of the Bo­ston Mara­thon bomb­ing sus­pects or new ex­trem­ist ele­ments emer­ging in the af­ter­math of the Ar­ab Spring, which may be loc­ally or re­gion­ally fo­cused in their aims, rather than or­gan­ized to tar­get Amer­ica.

Koh, now a pro­fess­or at Yale, spe­cific­ally ex­cluded lone ter­ror­ists as en­emies un­der the AUMF in a speech at the Ox­ford Uni­on last fall. “To be clear, the United States is not at war with any idea or re­li­gion, with mere pro­pa­gand­ists or journ­al­ists, or even with sad in­di­vidu­als — like the re­cent Bo­ston bombers — who may be­come rad­ic­al­ized, in­spired by al-Qaida’s ideo­logy, but nev­er ac­tu­ally join or be­come part of al-Qaida,” Koh said. “As we have seen, such per­sons may be ex­ceed­ingly dan­ger­ous, but they should be dealt with through tools of ci­vil­ian law en­force­ment, not mil­it­ary ac­tion.”

Koh and oth­er ad­min­is­tra­tion of­fi­cials cite a speech in Novem­ber 2012 by Home­land Se­cur­ity Sec­ret­ary Jeh John­son, then the Pentagon’s gen­er­al coun­sel, who set out the clearest cri­ter­ia yet for how the war will end. “We have pub­licly stated that our en­emy con­sists of those per­sons who are part of the Taliban, al-Qaida, or as­so­ci­ated forces,” John­son said, also at the Ox­ford Uni­on. “We have pub­licly defined an ‘as­so­ci­ated force’ as hav­ing two char­ac­ter­ist­ics: 1) an or­gan­ized, armed group that has entered the fight along­side al-Qaida, and 2) is a cobel­li­ger­ent with al-Qaida in hos­til­it­ies against the United States or its co­ali­tion part­ners.”

Then, in a pas­sage that Koh ap­prov­ingly quoted, John­son said, “There will come a tip­ping point “¦ at which so many of the lead­ers and op­er­at­ives of al-Qaida and its af­fil­i­ates have been killed or cap­tured, and the group is no longer able to at­tempt or launch a stra­tegic at­tack against the United States, such that al-Qaida as we know it, the or­gan­iz­a­tion that our Con­gress au­thor­ized the mil­it­ary to pur­sue in 2001, has been ef­fect­ively des­troyed.” And the war would be ex­pec­ted to end, at which point the AUMF would os­tens­ibly be no longer in ef­fect.

Clos­ing such a chapter wouldn’t mean that a fu­ture ad­min­is­tra­tion couldn’t act ag­gress­ively to re­spond to threats. Con­sti­tu­tion­al law­yers ar­gue that even without the AUMF, the pres­id­ent pos­sesses the power to act in Amer­ica’s self-de­fense with leth­al force — one reas­on Obama may be will­ing to see the au­thor­iz­a­tion re­pealed. The gen­er­als do not seem to agree, al­though that’s hardly sur­pris­ing. “The CIA and JSOC are al­ways look­ing for ways to jus­ti­fy their jobs. One way to do it is to identi­fy new ter­ror­ists,” says Scott Hor­ton, a hu­man-rights law­yer.

But the Obama ad­min­is­tra­tion has made it easi­er for fu­ture pres­id­ents to make war un­der those powers as well, by ex­pand­ing the concept of what con­sti­tutes an “im­min­ent” threat to the United States, which al­lows the pres­id­ent to re­spond without con­gres­sion­al ap­prov­al un­der Art­icle II of the Con­sti­tu­tion. The new term be­ing used: “elong­ated im­min­ence,” which means that a pres­id­ent doesn’t have to deem the coun­try un­der im­me­di­ate threat of at­tack be­fore act­ing on his or her own.

What re­mains ut­terly un­clear is how such a broad cri­terion should be defined. What does “ef­fect­ively des­troyed” mean? And the ad­min­is­tra­tion has been send­ing mixed sig­nals on how long this might take, as well as who the en­emy is. At a con­gres­sion­al hear­ing last year, Mi­chael Shee­han, the as­sist­ant De­fense sec­ret­ary for spe­cial op­er­a­tions and low-in­tens­ity con­flict, said U.S. mil­it­ary op­er­a­tions against al-Qaida and as­so­ci­ated forces are “go­ing to go on for quite a while “¦ bey­ond the second term of the pres­id­ent…. I think it’s at least 10 to 20 years.” Sup­port­ers carry por­traits of the slain Al-Qaeda lead­er Osama bin Laden as they gath­er dur­ing an anti-US rally. (BANARAS KHAN/AFP/Getty­Im­ages)

FAK­ING RE­STRAINT

That little-no­ticed hear­ing of the Sen­ate Armed Ser­vices Com­mit­tee vividly laid bare the po­ten­tial danger that stems from leav­ing the cur­rent AUMF in place. It be­came evid­ent from the testi­mony of sev­er­al seni­or ad­min­is­tra­tion of­fi­cials that the mil­it­ary be­lieves it has all the au­thor­ity it needs to em­ploy Amer­ic­an might in any glob­al hot spot it chooses as long as some tenu­ous con­nec­tion to al-Qaida ex­ists — a view that is at odds with what the ad­min­is­tra­tion has said pub­licly.

For ex­ample, when Sen. John Mc­Cain, R-Ar­iz., asked Robert Taylor, the Pentagon’s gen­er­al coun­sel, wheth­er the AUMF could be read to au­thor­ize U.S. leth­al force against al-Qaida’s “as­so­ci­ated forces” in coun­tries such as Mali, Libya, and Syr­ia, Taylor re­spon­ded: “On the do­mest­ic law side, yes sir.”

Sen. Lind­sey Gra­ham, R-S.C., fol­lowed up by ask­ing wheth­er the AUMF al­lowed the pres­id­ent to send troops in­to Ye­men and the Congo. Shee­han answered af­firm­at­ively, and then Sen. Joe Don­nelly, D-Ind., asked if the U.S. could use the AUMF to go after the al-Nusra Front in Syr­ia. Yes, Shee­han replied, “if we felt they were threat­en­ing our se­cur­ity.”

The Pentagon of­fi­cials were un­an­im­ous in as­sert­ing to the pan­el that the mil­it­ary needed no fur­ther re­fine­ment in the AUMF to con­duct op­er­a­tions. And Sen. An­gus King, the in­de­pend­ent from Maine, quickly grasped why. “You’re say­ing we don’t need any change, be­cause of the way you read it, we can do any­thing…. The way you read it, there’s no lim­it.”

Writ­ing about the hear­ing for the blog Law­fare, Jack Gold­smith, a former law­yer in the George W. Bush Justice De­part­ment and an ex­pert in na­tion­al se­cur­ity law, said it “made clear that the Obama ad­min­is­tra­tion’s long in­sist­ence that it is deeply re­strained un­der the AUMF is mis­lead­ing and at a min­im­um re­quires much more ex­tens­ive scru­tiny.”

But the hear­ing re­vealed an­oth­er worry about the pro­sec­u­tion of the Forever War. When Don­nelly asked Shee­han if the United States had de­term­ined wheth­er al-Nusra was, in fact, a threat to na­tion­al se­cur­ity, Shee­han de­clined to an­swer. “I don’t want to get in, in this set­ting, the de­cision-mak­ing we have for how we tar­get dif­fer­ent groups and or­gan­iz­a­tions around the world,” he told the sen­at­or.

Pressed, the De­fense of­fi­cials ul­ti­mately agreed to provide the com­mit­tee with a list of groups world­wide the ad­min­is­tra­tion be­lieves to qual­i­fy as “as­so­ci­ated groups” un­der the AUMF. But that list, to date, re­mains clas­si­fied. The com­mit­tee re­fused a Na­tion­al Journ­al re­quest to provide it or even to say how many groups are lis­ted on it.

It means that the United States is now in the 13th year of a con­flict with an en­emy that can shift and morph end­lessly, van­ish­ing in one spot, ree­m­er­ging in an­oth­er. The secrecy un­der­mines what was viewed as a key be­ne­fit of the au­thor­iz­a­tion when it was passed — that it would provide a level of trans­par­ency about Amer­ic­an mil­it­ary ob­ject­ives. “The AUMF put the world on no­tice,” says Jens Ohlin, a pro­fess­or at Cor­nell Law School who has called for the law to be mod­i­fied to spe­cific­ally in­cor­por­ate IS­IS op­er­at­ing in Syr­ia. And even Koh, who has de­fen­ded the ad­min­is­tra­tion’s prac­tices since re­turn­ing to Yale, slammed it for its tend­ency to work in the shad­ows. “This ad­min­is­tra­tion has not done enough to be trans­par­ent about the leg­al stand­ards and the de­cision-mak­ing pro­cess that it has been ap­ply­ing,” he said at Ox­ford.

The worry goes bey­ond dis­clos­ure. The defin­i­tion of “as­so­ci­ated groups” un­der the AUMF is be­ing yanked and stretched in ways that may not have been en­vi­sioned more than a dec­ade ago. Key to the ad­min­is­tra­tion’s in­ter­pret­a­tion of the law has been the concept of “cobel­li­ger­ency.” For a group to be a leg­ally val­id tar­get of Amer­ic­an op­er­a­tions, it must be an af­fil­i­ate of al-Qaida and have de­clared the U.S. to be a tar­get of hos­til­it­ies.

The United States is now in the 13th year of a con­flict with an en­emy that can shift and morph end­lessly, van­ish­ing in one spot, ree­m­er­ging in an­oth­er.

But what about groups that arise long after the core of the al-Qaida that plot­ted the 9/11 at­tacks has been “decim­ated” — to use the pres­id­ent’s word? The AUMF con­ceiv­ably could provide cov­er for an end­less war against a series of re­gion­al suc­cessor groups, some worry — in­clud­ing groups whose in­ten­tions to­ward the United States may be less than clear or may os­cil­late with changes in lead­er­ship or dir­ec­tion. At the Armed Ser­vices hear­ing, Taylor, the Pentagon law­yer, was asked by Sen. Tim Kaine, D-Va., wheth­er it was the leg­al po­s­i­tion of the Obama ad­min­is­tra­tion that “even groups or in­di­vidu­als that had noth­ing to do with the at­tacks, once they be­come as­so­ci­ated with al-Qaida 25 years from now, are nev­er­the­less covered by the cur­rent lan­guage of the AUMF?”

“I don’t want to say 25 years from now,” Taylor replied. “But today, yes.”

It is il­lus­trat­ive of the am­bi­gu­ity cre­ated by that au­thor­iz­a­tion that today, some fear that the AUMF provides the gov­ern­ment too much li­cense around the world, while oth­ers fear it now falls short and lacks flex­ib­il­ity. But crit­ics on all sides charge that the Obama ad­min­is­tra­tion — and, by ex­ten­sion, the mil­it­ary — op­pose a modi­fic­a­tion of the au­thor­iz­a­tion be­cause do­ing so would lim­it the al­most total dis­cre­tion held now by the ex­ec­ut­ive branch, which in the con­text of the on­go­ing war has ex­clus­ive au­thor­ity to define the en­emy, de­cid­ing which groups are “as­so­ci­ated” and which are not.

“Ad­voc­ates of strong uni­lat­er­al power in the ex­ec­ut­ive branch may not want to see a con­gres­sion­ally craf­ted stand­ard here,” says Ohlin, mind­ful of the wide lat­it­ude the statue could give a fu­ture ad­min­is­tra­tion. “When you’re talk­ing about con­strain­ing the pres­id­ent, you’re not talk­ing about con­strain­ing this pres­id­ent.”

UNI­LAT­ER­AL CEASE-FIRE

For Con­gress to be able to act as a check on the ex­ec­ut­ive branch’s power to define the scope of the con­flict, there must be some con­sensus on the Hill for mov­ing for­ward. That re­mains elu­sive — and the ad­min­is­tra­tion’s un­will­ing­ness so far to en­gage on the is­sue has frus­trated some in both parties. “All I can spec­u­late is that [Obama] wants a com­pletely free hand,” says Rep. Mac Thorn­berry, a Texas Re­pub­lic­an who chairs the House Armed Ser­vices’ In­tel­li­gence, Emer­ging Threats, and Cap­ab­il­it­ies Sub­com­mit­tee.

Twice, in 2011 and 2012, House Re­pub­lic­ans at­temp­ted to re­fine and fur­ther co­di­fy the AUMF, but their ef­forts were op­posed by the ad­min­is­tra­tion as well as by pro­gress­ives who worry that a new law will simply rat­i­fy the ever-ex­pand­ing bat­tle­field. But Thorn­berry blasts the White House’s view that the AUMF can be re­pealed any­time soon. “At one point in the ad­min­is­tra­tion’s nar­rat­ive, we had won the war on ter­ror­ism and we needed to move on. Events in the world have made that not true.” A cler­ric walks past a mur­al on the wall of the former U.S. em­bassy, in Tehran, Ir­an. (Majid Saeedi/Getty Im­ages)

Now, he wor­ries, “we can’t do everything we want to do be­cause the AUMF hasn’t been up­dated,” spe­cific­ally cit­ing the pur­suit of mil­it­ants who launched the 2012 at­tack on the Amer­ic­an mis­sion in Benghazi, Libya. “I want that solider out there to have the ad­equate leg­al sup­port for what he is asked to do.”

Then there are oth­ers on the Hill who are seek­ing to con­tain the pres­id­ent’s power. Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah, have co­sponsored le­gis­la­tion that would re­quire Con­gress to au­thor­ize fur­ther U.S. mil­it­ary ac­tion in Afgh­anistan after this year. “Auto­mat­ic re­new­al is fine for Net­flix and gym mem­ber­ships, but it isn’t the right ap­proach when it comes to war,” Merkley said when the bill was in­tro­duced in Janu­ary. “It’s a de­cision that should not be made by a single per­son or one ad­min­is­tra­tion.”

Des­pite that ef­fort, Demo­crats on the whole have shown little in­terest in the is­sue bey­ond of­fer­ing oc­ca­sion­al lip ser­vice that something, some­time needs to change. That’s likely be­cause they’re in the same pre­dic­a­ment Obama is in: Call­ing for re­peal of the AUMF when threats still ex­ist seems pre­ma­ture, but re­vis­ing it is at odds with the nar­rat­ive con­tinu­ally ad­vanced by the ad­min­is­tra­tion that war is “wind­ing down.” The lack of any sort of crit­ic­al mass on the is­sue — either to­ward re­vi­sion or re­peal, sug­gests Con­gress is con­tent to do noth­ing un­til pressed. That hasn’t happened.

Rep. Adam Schiff, a South­ern Cali­for­nia Demo­crat, has been a lonely voice for re­peal — or, at the very least, some sort of sun­set pro­vi­sion when the AUMF is ul­ti­mately reau­thor­ized. “It’s plainly out of date,” he says. The in­creas­ingly shaky leg­al grounds for the war, he says, dam­ages Amer­ica’s glob­al stand­ing. “If the U.S. acts in a way con­trary to our own leg­al au­thor­ity, we in­vite all oth­er coun­tries to do so.”

There is one way Obama could ef­fect­ively re­peal the AUMF, ex­perts say. He could stand up and un­equi­voc­ally de­clare that the 9/11 con­flict is over, that the al-Qaida that at­tacked Amer­ica that day no longer func­tion­ally ex­ists, and that the gov­ern­ment will ad­opt a dif­fer­ent coun­terter­ror­ism pos­ture go­ing for­ward. “If the pres­id­ent wants to say the con­flict is over, he doesn’t need an act of Con­gress to do it,” says Ben­jamin Wittes, a na­tion­al se­cur­ity ex­pert at the Brook­ings In­sti­tu­tion. “He doesn’t need Con­gress to make the AUMF a dead let­ter.”

But there is a sig­ni­fic­ant reas­on why he can’t do that. At least not yet.

The pres­id­ent needs the AUMF to provide a leg­al ra­tionale for the in­def­in­ite de­ten­tions at Guantá­namo. And un­til his ad­min­is­tra­tion comes up with some plan for clos­ing that fa­cil­ity and de­term­in­ing what to do with the in­mates deemed too dan­ger­ous to re­lease — an­oth­er thing it hasn’t done — the AUMF will have to re­main in force.

Moreover, the polit­ic­al risks of de­clar­ing an end to hos­til­it­ies are ap­par­ent, as Mike Ro­gers’s cri­ti­cisms make clear. A ma­jor new ter­ror­ist at­tack against a U.S. tar­get could make the pres­id­ent look fool­ish and na­ive. Yet if Obama truly wants to ush­er in a new paradigm be­fore he leaves of­fice, this may be the only way. Such a de­clar­a­tion would cause the leg­al au­thor­ity for com­bat­ing ter­ror­ism glob­ally to re­vert to its pre-9/11 state, which more closely hewed to the law-en­force­ment-ori­ented ap­proach favored by At­tor­ney Gen­er­al Eric Hold­er, among oth­ers. At some point in the fu­ture, the switch — the move to a dif­fer­ent foot­ing, a de­par­ture from the 9/11 state of etern­al war — will have to take place, be­cause, as Thorn­berry says, “ter­ror­ism is not go­ing away.”

But it’s likely Obama will not be the per­son who takes the coun­try there. Six years in­to his pres­id­ency, the man who vowed to shut­ter Guantá­namo, move away from the knee-jerk, Bush ap­proach to coun­terter­ror­ism, and re­store the na­tion’s mor­al and leg­al stand­ing in the world is still talk­ing about do­ing all those things. The dif­fer­ence, as Wittes notes, is that now he comes across schizo­phren­ic­ally, as someone who is “a crit­ic of his own policies.”

If Obama doesn’t dra­mat­ic­ally change course, the pres­id­ent who la­ments fight­ing the Forever War will be the man who in­sti­tu­tion­al­izes it. The ma­chine will keep run­ning without him.

BENDING AND BREAKING

The ad­min­is­tra­tion’s in­ac­tion stems in part from the way Obama has boxed him­self in. He has said he doesn’t want to sign a new con­gres­sion­al force au­thor­iz­a­tion that may be bet­ter equipped to deal with mod­ern ter­ror­ism threats, be­cause he wor­ries about pro­long­ing the war. But without one, the ad­min­is­tra­tion has been forced to stretch and dis­tort the 9/11 au­thor­iz­a­tion to new fronts in Somalia and Ye­men in ways that could en­cour­age an­oth­er pres­id­ent to push the leg­al en­vel­ope even fur­ther.

The res­ult is that the war, as it stands, is be­ing fought in a state of leg­al limbo, one that wor­ries both con­ser­vat­ives, who fa­vor re­writ­ing the 9/11 AUMF, and lib­er­als, who fa­vor re­peal­ing it. And it has giv­en ad­min­is­tra­tion of­fi­cials no choice but to forge ahead, some­times seem­ingly mak­ing up the rules as they go — as evid­enced per­haps by the Decem­ber strike in Ye­men.

That in­tern­al de­bate achieved al­most tra­gi­com­ic di­men­sions re­cently when The Wash­ing­ton Post re­por­ted that fol­low­ing the de­cision of Ay­man al-Za­wahiri, the nom­in­al lead­er of al-Qaida’s core in Pakistan, to ex­com­mu­nic­ate an ul­tra­vi­olent group call­ing it­self “Is­lam­ic State in Ir­aq and Syr­ia” or IS­IS, U.S. of­fi­cials were weigh­ing wheth­er to drop that group from the U.S. en­emies list. That, says crit­ics, is the ul­ti­mate mis­take in al­low­ing al-Qaida to define the con­flict. “It’s con­ceiv­able that al-Qaida might ‘fire’ them pub­licly while privately con­tinu­ing to have lots of deal­ings with them,” Bellinger says.

The only an­swer to the evolving new threat, these crit­ics say, is to up­date the au­thor­iz­a­tion to ad­dress the chan­ging nature of al-Qaida and its af­fil­i­ates. Obama ap­pears to be leery of try­ing with a Con­gress that, even count­ing fel­low Demo­crats, most re­cently re­fused him ap­prov­al for strikes on Syr­ia in re­tali­ation for chem­ic­al-weapons use.

The new term be­ing used: “elong­ated im­min­ence,” which means that a pres­id­ent doesn’t have to deem the coun­try un­der im­me­di­ate threat of at­tack be­fore act­ing on his or her own.

Giv­en the choice between re­peal and leav­ing the cur­rent law in place, most in the White House and Con­gress have op­ted for let­ting in­er­tia carry the day. “I was one of the people who kicked off the de­bate four years ago that the AUMF ought to be re­vised,” says Bellinger, who also served as gen­er­al coun­sel to the State De­part­ment in the mid-2000s when the first rules for war­fare against ter­ror­ist groups were be­ing dis­cussed. “It ought to fit what we’re do­ing now. A 60-word stat­ute writ­ten by Con­gress three days after 9/11 needs to be more pre­cise. But that re­quires good gov­ern­ment, and I’ve come to be­lieve it’s im­possible for our Con­gress to do good gov­ern­ment. It’s prob­ably bet­ter just to leave this an­cient stat­ute on the books.”

In a series of speeches dat­ing back two years, ad­min­is­tra­tion of­fi­cials have sought to point the way to an even­tu­al end to the war by dis­tin­guish­ing “core al-Qaida” or “as­so­ci­ated groups” that are “or­gan­ized” and spe­cific­ally tar­get Amer­ic­ans from oth­er less stra­tegic threats. Among the lat­ter are “lone wolves” along the lines of the Bo­ston Mara­thon bomb­ing sus­pects or new ex­trem­ist ele­ments emer­ging in the af­ter­math of the Ar­ab Spring, which may be loc­ally or re­gion­ally fo­cused in their aims, rather than or­gan­ized to tar­get Amer­ica.

Koh, now a pro­fess­or at Yale, spe­cific­ally ex­cluded lone ter­ror­ists as en­emies un­der the AUMF in a speech at the Ox­ford Uni­on last fall. “To be clear, the United States is not at war with any idea or re­li­gion, with mere pro­pa­gand­ists or journ­al­ists, or even with sad in­di­vidu­als — like the re­cent Bo­ston bombers — who may be­come rad­ic­al­ized, in­spired by al-Qaida’s ideo­logy, but nev­er ac­tu­ally join or be­come part of al-Qaida,” Koh said. “As we have seen, such per­sons may be ex­ceed­ingly dan­ger­ous, but they should be dealt with through tools of ci­vil­ian law en­force­ment, not mil­it­ary ac­tion.”

Koh and oth­er ad­min­is­tra­tion of­fi­cials cite a speech in Novem­ber 2012 by Home­land Se­cur­ity Sec­ret­ary Jeh John­son, then the Pentagon’s gen­er­al coun­sel, who set out the clearest cri­ter­ia yet for how the war will end. “We have pub­licly stated that our en­emy con­sists of those per­sons who are part of the Taliban, al-Qaida, or as­so­ci­ated forces,” John­son said, also at the Ox­ford Uni­on. “We have pub­licly defined an ‘as­so­ci­ated force’ as hav­ing two char­ac­ter­ist­ics: 1) an or­gan­ized, armed group that has entered the fight along­side al-Qaida, and 2) is a cobel­li­ger­ent with al-Qaida in hos­til­it­ies against the United States or its co­ali­tion part­ners.”

Then, in a pas­sage that Koh ap­prov­ingly quoted, John­son said, “There will come a tip­ping point “¦ at which so many of the lead­ers and op­er­at­ives of al-Qaida and its af­fil­i­ates have been killed or cap­tured, and the group is no longer able to at­tempt or launch a stra­tegic at­tack against the United States, such that al-Qaida as we know it, the or­gan­iz­a­tion that our Con­gress au­thor­ized the mil­it­ary to pur­sue in 2001, has been ef­fect­ively des­troyed.” And the war would be ex­pec­ted to end, at which point the AUMF would os­tens­ibly be no longer in ef­fect.

Clos­ing such a chapter wouldn’t mean that a fu­ture ad­min­is­tra­tion couldn’t act ag­gress­ively to re­spond to threats. Con­sti­tu­tion­al law­yers ar­gue that even without the AUMF, the pres­id­ent pos­sesses the power to act in Amer­ica’s self-de­fense with leth­al force — one reas­on Obama may be will­ing to see the au­thor­iz­a­tion re­pealed. The gen­er­als do not seem to agree, al­though that’s hardly sur­pris­ing. “The CIA and JSOC are al­ways look­ing for ways to jus­ti­fy their jobs. One way to do it is to identi­fy new ter­ror­ists,” says Scott Hor­ton, a hu­man-rights law­yer.

But the Obama ad­min­is­tra­tion has made it easi­er for fu­ture pres­id­ents to make war un­der those powers as well, by ex­pand­ing the concept of what con­sti­tutes an “im­min­ent” threat to the United States, which al­lows the pres­id­ent to re­spond without con­gres­sion­al ap­prov­al un­der Art­icle II of the Con­sti­tu­tion. The new term be­ing used: “elong­ated im­min­ence,” which means that a pres­id­ent doesn’t have to deem the coun­try un­der im­me­di­ate threat of at­tack be­fore act­ing on his or her own.

What re­mains ut­terly un­clear is how such a broad cri­terion should be defined. What does “ef­fect­ively des­troyed” mean? And the ad­min­is­tra­tion has been send­ing mixed sig­nals on how long this might take, as well as who the en­emy is. At a con­gres­sion­al hear­ing last year, Mi­chael Shee­han, the as­sist­ant De­fense sec­ret­ary for spe­cial op­er­a­tions and low-in­tens­ity con­flict, said U.S. mil­it­ary op­er­a­tions against al-Qaida and as­so­ci­ated forces are “go­ing to go on for quite a while “¦ bey­ond the second term of the pres­id­ent…. I think it’s at least 10 to 20 years.” Sup­port­ers carry por­traits of the slain Al-Qaeda lead­er Osama bin Laden as they gath­er dur­ing an anti-US rally. (BANARAS KHAN/AFP/Getty­Im­ages)

FAKING RESTRAINT

That little-no­ticed hear­ing of the Sen­ate Armed Ser­vices Com­mit­tee vividly laid bare the po­ten­tial danger that stems from leav­ing the cur­rent AUMF in place. It be­came evid­ent from the testi­mony of sev­er­al seni­or ad­min­is­tra­tion of­fi­cials that the mil­it­ary be­lieves it has all the au­thor­ity it needs to em­ploy Amer­ic­an might in any glob­al hot spot it chooses as long as some tenu­ous con­nec­tion to al-Qaida ex­ists — a view that is at odds with what the ad­min­is­tra­tion has said pub­licly.

For ex­ample, when Sen. John Mc­Cain, R-Ar­iz., asked Robert Taylor, the Pentagon’s gen­er­al coun­sel, wheth­er the AUMF could be read to au­thor­ize U.S. leth­al force against al-Qaida’s “as­so­ci­ated forces” in coun­tries such as Mali, Libya, and Syr­ia, Taylor re­spon­ded: “On the do­mest­ic law side, yes sir.”

Sen. Lind­sey Gra­ham, R-S.C., fol­lowed up by ask­ing wheth­er the AUMF al­lowed the pres­id­ent to send troops in­to Ye­men and the Congo. Shee­han answered af­firm­at­ively, and then Sen. Joe Don­nelly, D-Ind., asked if the U.S. could use the AUMF to go after the al-Nusra Front in Syr­ia. Yes, Shee­han replied, “if we felt they were threat­en­ing our se­cur­ity.”

The Pentagon of­fi­cials were un­an­im­ous in as­sert­ing to the pan­el that the mil­it­ary needed no fur­ther re­fine­ment in the AUMF to con­duct op­er­a­tions. And Sen. An­gus King, the in­de­pend­ent from Maine, quickly grasped why. “You’re say­ing we don’t need any change, be­cause of the way you read it, we can do any­thing…. The way you read it, there’s no lim­it.”

Writ­ing about the hear­ing for the blog Law­fare, Jack Gold­smith, a former law­yer in the George W. Bush Justice De­part­ment and an ex­pert in na­tion­al se­cur­ity law, said it “made clear that the Obama ad­min­is­tra­tion’s long in­sist­ence that it is deeply re­strained un­der the AUMF is mis­lead­ing and at a min­im­um re­quires much more ex­tens­ive scru­tiny.”

But the hear­ing re­vealed an­oth­er worry about the pro­sec­u­tion of the Forever War. When Don­nelly asked Shee­han if the United States had de­term­ined wheth­er al-Nusra was, in fact, a threat to na­tion­al se­cur­ity, Shee­han de­clined to an­swer. “I don’t want to get in, in this set­ting, the de­cision-mak­ing we have for how we tar­get dif­fer­ent groups and or­gan­iz­a­tions around the world,” he told the sen­at­or.

Pressed, the De­fense of­fi­cials ul­ti­mately agreed to provide the com­mit­tee with a list of groups world­wide the ad­min­is­tra­tion be­lieves to qual­i­fy as “as­so­ci­ated groups” un­der the AUMF. But that list, to date, re­mains clas­si­fied. The com­mit­tee re­fused a Na­tion­al Journ­al re­quest to provide it or even to say how many groups are lis­ted on it.

It means that the United States is now in the 13th year of a con­flict with an en­emy that can shift and morph end­lessly, van­ish­ing in one spot, ree­m­er­ging in an­oth­er. The secrecy un­der­mines what was viewed as a key be­ne­fit of the au­thor­iz­a­tion when it was passed — that it would provide a level of trans­par­ency about Amer­ic­an mil­it­ary ob­ject­ives. “The AUMF put the world on no­tice,” says Jens Ohlin, a pro­fess­or at Cor­nell Law School who has called for the law to be mod­i­fied to spe­cific­ally in­cor­por­ate IS­IS op­er­at­ing in Syr­ia. And even Koh, who has de­fen­ded the ad­min­is­tra­tion’s prac­tices since re­turn­ing to Yale, slammed it for its tend­ency to work in the shad­ows. “This ad­min­is­tra­tion has not done enough to be trans­par­ent about the leg­al stand­ards and the de­cision-mak­ing pro­cess that it has been ap­ply­ing,” he said at Ox­ford.

The worry goes bey­ond dis­clos­ure. The defin­i­tion of “as­so­ci­ated groups” un­der the AUMF is be­ing yanked and stretched in ways that may not have been en­vi­sioned more than a dec­ade ago. Key to the ad­min­is­tra­tion’s in­ter­pret­a­tion of the law has been the concept of “cobel­li­ger­ency.” For a group to be a leg­ally val­id tar­get of Amer­ic­an op­er­a­tions, it must be an af­fil­i­ate of al-Qaida and have de­clared the U.S. to be a tar­get of hos­til­it­ies.

The United States is now in the 13th year of a con­flict with an en­emy that can shift and morph end­lessly, van­ish­ing in one spot, ree­m­er­ging in an­oth­er.

But what about groups that arise long after the core of the al-Qaida that plot­ted the 9/11 at­tacks has been “decim­ated” — to use the pres­id­ent’s word? The AUMF con­ceiv­ably could provide cov­er for an end­less war against a series of re­gion­al suc­cessor groups, some worry — in­clud­ing groups whose in­ten­tions to­ward the United States may be less than clear or may os­cil­late with changes in lead­er­ship or dir­ec­tion. At the Armed Ser­vices hear­ing, Taylor, the Pentagon law­yer, was asked by Sen. Tim Kaine, D-Va., wheth­er it was the leg­al po­s­i­tion of the Obama ad­min­is­tra­tion that “even groups or in­di­vidu­als that had noth­ing to do with the at­tacks, once they be­come as­so­ci­ated with al-Qaida 25 years from now, are nev­er­the­less covered by the cur­rent lan­guage of the AUMF?”

“I don’t want to say 25 years from now,” Taylor replied. “But today, yes.”

It is il­lus­trat­ive of the am­bi­gu­ity cre­ated by that au­thor­iz­a­tion that today, some fear that the AUMF provides the gov­ern­ment too much li­cense around the world, while oth­ers fear it now falls short and lacks flex­ib­il­ity. But crit­ics on all sides charge that the Obama ad­min­is­tra­tion — and, by ex­ten­sion, the mil­it­ary — op­pose a modi­fic­a­tion of the au­thor­iz­a­tion be­cause do­ing so would lim­it the al­most total dis­cre­tion held now by the ex­ec­ut­ive branch, which in the con­text of the on­go­ing war has ex­clus­ive au­thor­ity to define the en­emy, de­cid­ing which groups are “as­so­ci­ated” and which are not.

“Ad­voc­ates of strong uni­lat­er­al power in the ex­ec­ut­ive branch may not want to see a con­gres­sion­ally craf­ted stand­ard here,” says Ohlin, mind­ful of the wide lat­it­ude the statue could give a fu­ture ad­min­is­tra­tion. “When you’re talk­ing about con­strain­ing the pres­id­ent, you’re not talk­ing about con­strain­ing this pres­id­ent.”

UNILATERAL CEASE-FIRE

For Con­gress to be able to act as a check on the ex­ec­ut­ive branch’s power to define the scope of the con­flict, there must be some con­sensus on the Hill for mov­ing for­ward. That re­mains elu­sive — and the ad­min­is­tra­tion’s un­will­ing­ness so far to en­gage on the is­sue has frus­trated some in both parties. “All I can spec­u­late is that [Obama] wants a com­pletely free hand,” says Rep. Mac Thorn­berry, a Texas Re­pub­lic­an who chairs the House Armed Ser­vices’ In­tel­li­gence, Emer­ging Threats, and Cap­ab­il­it­ies Sub­com­mit­tee.

Twice, in 2011 and 2012, House Re­pub­lic­ans at­temp­ted to re­fine and fur­ther co­di­fy the AUMF, but their ef­forts were op­posed by the ad­min­is­tra­tion as well as by pro­gress­ives who worry that a new law will simply rat­i­fy the ever-ex­pand­ing bat­tle­field. But Thorn­berry blasts the White House’s view that the AUMF can be re­pealed any­time soon. “At one point in the ad­min­is­tra­tion’s nar­rat­ive, we had won the war on ter­ror­ism and we needed to move on. Events in the world have made that not true.” A cler­ric walks past a mur­al on the wall of the former U.S. em­bassy, in Tehran, Ir­an. (Majid Saeedi/Getty Im­ages)

Now, he wor­ries, “we can’t do everything we want to do be­cause the AUMF hasn’t been up­dated,” spe­cific­ally cit­ing the pur­suit of mil­it­ants who launched the 2012 at­tack on the Amer­ic­an mis­sion in Benghazi, Libya. “I want that solider out there to have the ad­equate leg­al sup­port for what he is asked to do.”

Then there are oth­ers on the Hill who are seek­ing to con­tain the pres­id­ent’s power. Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah, have co­sponsored le­gis­la­tion that would re­quire Con­gress to au­thor­ize fur­ther U.S. mil­it­ary ac­tion in Afgh­anistan after this year. “Auto­mat­ic re­new­al is fine for Net­flix and gym mem­ber­ships, but it isn’t the right ap­proach when it comes to war,” Merkley said when the bill was in­tro­duced in Janu­ary. “It’s a de­cision that should not be made by a single per­son or one ad­min­is­tra­tion.”

Des­pite that ef­fort, Demo­crats on the whole have shown little in­terest in the is­sue bey­ond of­fer­ing oc­ca­sion­al lip ser­vice that something, some­time needs to change. That’s likely be­cause they’re in the same pre­dic­a­ment Obama is in: Call­ing for re­peal of the AUMF when threats still ex­ist seems pre­ma­ture, but re­vis­ing it is at odds with the nar­rat­ive con­tinu­ally ad­vanced by the ad­min­is­tra­tion that war is “wind­ing down.” The lack of any sort of crit­ic­al mass on the is­sue — either to­ward re­vi­sion or re­peal, sug­gests Con­gress is con­tent to do noth­ing un­til pressed. That hasn’t happened.

Rep. Adam Schiff, a South­ern Cali­for­nia Demo­crat, has been a lonely voice for re­peal — or, at the very least, some sort of sun­set pro­vi­sion when the AUMF is ul­ti­mately reau­thor­ized. “It’s plainly out of date,” he says. The in­creas­ingly shaky leg­al grounds for the war, he says, dam­ages Amer­ica’s glob­al stand­ing. “If the U.S. acts in a way con­trary to our own leg­al au­thor­ity, we in­vite all oth­er coun­tries to do so.”

There is one way Obama could ef­fect­ively re­peal the AUMF, ex­perts say. He could stand up and un­equi­voc­ally de­clare that the 9/11 con­flict is over, that the al-Qaida that at­tacked Amer­ica that day no longer func­tion­ally ex­ists, and that the gov­ern­ment will ad­opt a dif­fer­ent coun­terter­ror­ism pos­ture go­ing for­ward. “If the pres­id­ent wants to say the con­flict is over, he doesn’t need an act of Con­gress to do it,” says Ben­jamin Wittes, a na­tion­al se­cur­ity ex­pert at the Brook­ings In­sti­tu­tion. “He doesn’t need Con­gress to make the AUMF a dead let­ter.”

But there is a sig­ni­fic­ant reas­on why he can’t do that. At least not yet.

The pres­id­ent needs the AUMF to provide a leg­al ra­tionale for the in­def­in­ite de­ten­tions at Guantá­namo. And un­til his ad­min­is­tra­tion comes up with some plan for clos­ing that fa­cil­ity and de­term­in­ing what to do with the in­mates deemed too dan­ger­ous to re­lease — an­oth­er thing it hasn’t done — the AUMF will have to re­main in force.

Moreover, the polit­ic­al risks of de­clar­ing an end to hos­til­it­ies are ap­par­ent, as Mike Ro­gers’s cri­ti­cisms make clear. A ma­jor new ter­ror­ist at­tack against a U.S. tar­get could make the pres­id­ent look fool­ish and na­ive. Yet if Obama truly wants to ush­er in a new paradigm be­fore he leaves of­fice, this may be the only way. Such a de­clar­a­tion would cause the leg­al au­thor­ity for com­bat­ing ter­ror­ism glob­ally to re­vert to its pre-9/11 state, which more closely hewed to the law-en­force­ment-ori­ented ap­proach favored by At­tor­ney Gen­er­al Eric Hold­er, among oth­ers. At some point in the fu­ture, the switch — the move to a dif­fer­ent foot­ing, a de­par­ture from the 9/11 state of etern­al war — will have to take place, be­cause, as Thorn­berry says, “ter­ror­ism is not go­ing away.”

But it’s likely Obama will not be the per­son who takes the coun­try there. Six years in­to his pres­id­ency, the man who vowed to shut­ter Guantá­namo, move away from the knee-jerk, Bush ap­proach to coun­terter­ror­ism, and re­store the na­tion’s mor­al and leg­al stand­ing in the world is still talk­ing about do­ing all those things. The dif­fer­ence, as Wittes notes, is that now he comes across schizo­phren­ic­ally, as someone who is “a crit­ic of his own policies.”

If Obama doesn’t dra­mat­ic­ally change course, the pres­id­ent who la­ments fight­ing the Forever War will be the man who in­sti­tu­tion­al­izes it. The ma­chine will keep run­ning without him.

What We're Following See More »
WHITE HOUSE URGING QUICK SENATE ACTION
John King Gets Nod for Education Secretary
3 hours ago
THE DETAILS

President Obama has said he’ll nominate John King to fill out the last few months of Obama’s presidency as Secretary of Education. King has been in an acting secretary role since Arne Duncan stepped down in December. The White House is pressuring the Senate to act quickly on the nomination.

Source:
162,000 SIGNATURES SO FAR
Sanders Supporters Begin to Petition Superdelegates
3 hours ago
WHY WE CARE

Bernie Sanders supporters aren’t taking this whole superdelegate thing lying down. Despite a tie a blowout win against Hillary Clinton, Sanders trails her by some 350 delegates in the overall count, thanks mostly to superdelegates pledging to support her. His backers have taken to creating a MoveOn.org petition to pressure the superdelegates to be flexible. It reads: “Commit to honoring the voters—let everyone know that you won’t allow your vote to defeat our votes. Announce that in the event of a close race, you’ll align yourself with regular voters—not party elites.” So far it’s attracted 162,000 signatures. Related: At FiveThirtyEight, Nate Silver notes that in 2008, Clinton had a 154-50 superdelegate advantage over President Obama when New Hampshire voted. But “by the time Clinton ended her campaign on June 7, 2008, Obama had nearly a 2-to-1 superdelegate advantage over her,” owing in part to many pledged delegates who switched their support to Obama.

Source:
REGULAR ORDER
Ryan Pitching the Importance of Passing a Budget Today
4 hours ago
THE LATEST

House Speaker Paul Ryan today is trying to convince his large but divided conference that they need to pass a budget under regular order. “Conservatives are revolting against higher top-line spending levels negotiated last fall by President Obama and Ryan’s predecessor, then-Speaker John Boehner (R-OH). GOP centrists are digging in on the other side, pledging to kill any budget that deviates from the two-year, bipartisan budget deal.” Ryan’s three options are to lower the budget numbers to appease the Freedom Caucus, “deem” a budget and move on to the appropriations process, or “preserve Obama-Boehner levels, but seek savings elsewhere.”

Source:
HEADED TO PRESIDENT’S DESK
Trade Bill Would Ban Imports Made with Slave Labor
4 hours ago
THE DETAILS

“A bill headed for President Barack Obama this week includes a provision that would ban U.S. imports of fish caught by slaves in Southeast Asia, gold mined by children in Africa and garments sewn by abused women in Bangladesh, closing a loophole in an 85-year-old tariff law.” The Senate approved the bill, which would also ban Internet taxes and overhaul trade laws, by a vote of 75-20. It now goes to President Obama.

Source:
TRUMP UP TO 44%
Sanders Closes to Within Seven Nationally in New Poll
5 hours ago
THE LATEST

Bernie Sanders has closed to within seven points of Hillary Clinton in a new Morning Consult survey. Clinton leads 46%-39%. Consistent with the New Hampshire voting results, Clinton does best with retirees, while Sanders leads by 20 percentage points among those under 30. On the Republican side, Donald Trump is far ahead with 44% support. Trailing by a huge margin are Ted Cruz (17%), Ben Carson (10%) and Marco Rubio (10%).

Source:
×