After the AUMF

Abstract

Over a dozen years later, the AUMF — which has never been amended — remains the principal source of the U.S. government’s domestic legal authority to use military force against al Qaeda and its associates, both on the battlefields of Afghanistan and far beyond. But even as the statutory framework has remained unchanged, the facts on the ground have evolved dramatically, leading some to call for a new AUMF. In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive; they perpetuate war at a time when we should be seeking to end it. Congress certainly may choose, as it did in the AUMF, to authorize the use of military force against specific, organized groups so as to address an established and sustained threat that existing authorities are inadequate to quell. But until and unless the political branches publicly identify a group that poses such a threat, the many other counterterrorism tools at the government’s disposal provide a much more strategically sound (and legally justifiable) means of addressing the terrorist threat. This Article offers an alternative vision for the future of U.S. counterterrorism policy, one in which use-of-force authorizations are a last, rather than first, resort.

Keywords: terrorism, national security, war, AUMF