Reauthorizing the 'War on Terror': The Legal and Policy Implications of the AUMF's Coming Obsolescence

Abstract:     
The 2001 Authorization for Use of Military Force, passed in the uncertain days after the September 11 attacks, has provided the legal basis for the “war on terror” for over ten years. The AUMF authorizes the president to use “all necessary and appropriate force” to deter future attacks by those responsible for the September 11 attacks. This statute, however, suffers from a fatal flaw: anchored to the perpetrators of September 11, the AUMF is increasingly anachronistic. By now, the threat from Al Qaeda itself has been effectively neutralized, while the threat from other terrorist organizations around the world increases. Congress, however, has failed to pass a new authorization, despite recent efforts. The statute’s impending demise presents three options to U.S. policymakers – forego military operations against terrorist groups, pass a “new” AUMF, or rely on alternative legal authorities to justify the United States’ global counterterrorism efforts.

This article argues that reauthorizing military force is the United States’ best option, but with significant changes to the AUMF. Military operations will be a critical component of counterterrorism operations for at least the near term, while relying on alternative legal authority would necessitate either a return to excessively broad and legally unstable assertions of inherent executive power or adoption of a destabilizing understanding of the international law of self-defense. In light of the dearth of attractive choices and the problematic language of the current AUMF, this article lays out a framework for approaching reauthorization of military force against terrorist organizations, and argues for a particularized approach consonant with democratic principles and sound counterterrorism policy. A new AUMF should not only stand apart from the September 11 attacks, but also include clearer parameters of the Executive Branch’s ability to target terrorists with military force.

Number of Pages in PDF File: 58

Keywords: National Security Law, AUMF, Congressional Authorization, Al Qaeda, September 11, International Law, Jus ad bellum, Targeted Killing, statutory interpretation

JEL Classification: H56, K33

Accepted Paper Series