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Obama's AUMF Legacy

18 Pages Posted: 21 Aug 2016 Last revised: 8 Mar 2017

Curtis A. Bradley

Duke University School of Law

Jack Landman Goldsmith III

Harvard Law School

Date Written: August 24, 2016

Abstract

Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.

Keywords: aumf, obama administration, war on terror, international law, military detention, targeting

Suggested Citation

Bradley, Curtis A. and Goldsmith, Jack Landman, Obama's AUMF Legacy (August 24, 2016). Available at SSRN: https://ssrn.com/abstract=2823701

Curtis A. Bradley (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jack Landman Goldsmith III

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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