"Declare Victory and Get Out?" The Future of the AUMF

Stephen Griffin

Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF.  Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out.  In a world in which we did not have to contend with political parties, I would favor the latter option.  What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance.  Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure.  It's as if the presidents don't want the war to end.  Why might that be?  In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation.  In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency."

My title is a reference to Vietnam.  There may have been a moment during that war when key elements in both parties could have supported leaving South Vietnam, even knowing that this may have eventually guaranteed victory by the North.  In addition, there is plenty of evidence we are now in a sort of post-Vietnam moment in which a war-weary public and substantial elements in both parties are questioning the purpose and costs of a permanent war against a now ill-defined terrorist threat.  Hence declaring victory or peace or both is more realistic than many in the DC village might concede.

Yet the logic of the argument I present in Long Wars urges caution, since we still must contend with polarized political parties.  This means concretely that President Obama knows he will be blamed for any future terrorist attack, when it succeeds or fails.  That means to create the kind of breathing space we need, members of Congress would have to agree to, yes, blame themselves as much as the president in the case of a future terrorist strike.  Or move beyond the politics of blame.  Is this beyond them?  If you think so, this counsels either reworking the AUMF along the lines suggested by Professors Chesney, Goldsmith and Waxman or at least staying with the current AUMF and admitting we want the president to do everything he can to protect us.  If you (and I'm really talking to Congress here) can bring yourself to trust that the government is doing everything it can to prevent another terrorist strike and hence not go looking for someone to blame when it happens, we can all create a breathing space for peace together.  If, however, you want to retain the option to blame the president and the executive branch, then you will have to give them the power to prevent those attacks.  The best way to do this is openly and democratically.  But if you can't bring yourself to do this, the president will remain in the same position, responsible for now covertly preventing an attack in a way that may result in a constitutional crisis in the future.  That's the dilemma past presidents have faced, given the dysfunctional structure of what I call the post-1945 constitutional order.


Posted 11:55 AM by Stephen Griffin [link]