Balkinization  

Thursday, May 16, 2013

"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.


Comments:

Since the President is prevented by term limits to two terms, I assume when you talk about blame and its role in Presidential decision making you are talking about it in the "legacy" or "judgment of history" sense?
 

That should read "is prevented by terms limits from being elected to more than two terms".
 

The Korean War emegency declaration lasted until after the end of the Vietnam war, and served as a justification for many obnoxious government actions including price controls, wiretapping and loyalty oaths until it was finally repealed after the Vietnam War. Surely only war profiteers and power-hungry governments want to remain in a state of permanent warfare.
 

The wrong question is being asked.

When a foreign enemy is at war with you, a declaration of war is moot and the enemy does not care if you unilaterally "declare peace."

Declarations of war are Congressional permissions to start offensive wars and unnecessary for the President to defend the nation and its interests against others who are waging wars against us.

The only question is whether Congress will finance our defense against al Qaeda.

How the President defends the United States is his decision as commander in chief.
 

Bart

A problem with that analysis is that al Qaeda is not a nation but more or less a rag-tag group of terrorists. Are we "at war" with every groupof extremists that claims they are at war with us? Doesn't this empower these groups more than anything else (there's considerable evidence that bin Laden wanted very much for us to respond aggressively to his actions).

"How the President defends the United States is his decision as commander in chief."


Think about where this logic goes. Let's say Congress repeals the AUMF and for twenty years there are no attacks on US soil or even US forces abroad. Can a future President still exercise war powers on the grounds that he (or she) has decided thaat al Qaeda is still at war with us? What would you call a system that would give one person that kind of broad powers? Caesarist?
 

Mr. W:

The proper historical model to deal with terrorism is the one we used for piracy and brigandage, not the formal wars between nation states. Like pirates, terrorists should be considered the enemy of all humanity and every military and law enforcement agency in the world has the right and the power to kill or capture them on sight.

I do not understand your second point. If AQ has surrendered some twenty years before, against whom is your Caesarist president warring?
 

Blankshot, we're not at war with "Al Qaeda", we're at war with terror (a war that will never end). By the way, Al Qaeda is never going to "surrender", so that "war" would not end, either.
 

Bart

I didn't say AQ surrendered, I just said they had no attacks. Let's say they still release periodic broadcasts reaffirming their war on the US. Heck, since it's my hypo let's say it's one guy in a cave in Pakistan doing it. Under your logic the President could decide we are still at war and engage in a panoply of broad war powers. That's pretty Ceasarist, no?

As to the historical example of pirates, did past executives invoke all the broad war powers today's executives do to fight them?
 

Mr. W: I didn't say AQ surrendered, I just said they had no attacks.

And this differs from putting aside arms and surrendering in what way?

Mr. W: Let's say they still release periodic broadcasts reaffirming their war on the US. Heck, since it's my hypo let's say it's one guy in a cave in Pakistan doing it. Under your logic the President could decide we are still at war and engage in a panoply of broad war powers. That's pretty Ceasarist, no?

Ooookay.

Do you realize how many yahoos around the world publish some nonsense calling for Death to America every day?

I do not recall any previous president ordering the military to kill some foreign yahoo for calling for Death to America, but I suppose if one did, she would not only be a Caesarist for waging offensive war without Congress' permission, but also an international war criminal for waging an illegal war because the US is not acting in self defense.
 

Agreed
Turmeric Genus
 

The Civil War was not a long war, unless one includes what led to it, and accepts that after surrender the peace was slow in coming, its effects continuing to the present day some 150+ years later. This is off topic as it goes well back before the post-WW II theme of this post. But in truth the Civil War was a long war, with some today refighting it with revisionist histories. Lessons of long wars are not learned well.

Cynthia Wachtell's NYTimes website Opinionator essay "Nathaniel Hawthorne's Funny Civil War: caught my attention. No, the Civil War was not funny. But Hawthorne challenged the wisdom of wars. He was of course drowned out by the chorus of patriots on both sides, especially in his North. Post-WW II, similar challenges have also been drowned out. Currently the world is filled with potential and actual tinderboxes of wars, wars destined to be long wars. Will challengers today be heard?
 

[S]he would not only be a Caesarist for waging offensive war without Congress' permission, but also an international war criminal for waging an illegal war because the US is not acting in self defense.

We are exceptional. God, or something.
 

Mr. W, et al.: under international law the U.S. cannot be at "war" with al-Qaeda as such and the AUMF is not a declaration of war as much as an authorization to use force -- and, importantly, members of al-Qaeda who engage in armed attacks on the U.S., its embassies abroad, its military and other nationals abroad, can be lawfully targeted with force used in self-defense (whether or not there is a war).
 

The AUMF is not only being used as an authorization of force but to treat people like 'enemy combatants' or whatever they call them these days and so forth while in custody.

What is the "self-defense" implications of that?
 

Joe: none unless the detainees will be prosecuted for some relevant crime.
 

If we are not "at war" with the people involved, what is the basis of such detention as "enemy combatants"? Self-defense was cited as a grounds for legal use of force. What (if any) is the legal grounds for detaining them? The references to "war" in the Hamdi plurality ("incident to war" etc.) also are interesting. Perhaps, you dealt with this is your writings.
 

Joe: The AUMF is not only being used as an authorization of force but to treat people like 'enemy combatants' or whatever they call them these days and so forth while in custody.

If an enemy attacks the United States, a state of war exists regardless of whether Congress enacts a declaration of war/AUMF or "declares peace."

So long as there is a state of war, members of the enemy can be detained.
 

Answer to header question: Sen. George Aiken of VT. But who listened? And how many remember Sen. Aiken? 21st century long wars may end with many mushroom clouds with climate change the final solution.
 

"If an enemy attacks the United States, a state of war exists regardless of whether Congress enacts a declaration of war/AUMF or "declares peace."

Were we at war with Galleanists after the Wall Street Bombing of 1920?


 

To follow up with Mr. W's response, were we (i.e., the U.S. of A.) at war with the domestic militia movement coveted by our SALADISTA (FKA our yodeler) and Brett with incidents in Texas, Oklahoma, Montana, etc?
 

Mr. W:

Luigi Galleani was a anarcho-communist immigrant who inspired terrorism in the United States. The Galleanists were not a foreign power at war with the United States. Rather, Galleanists engaged in sedition.

If Galleani formed and directed a terrorist gang like al Qaeda in Italy which attacked the United States, yes that would be a state of war.
 

Luigi Galleani was an Italian who began his anarchist work in Italy. He had to flee several countries as he was wanted for crimes committed by the anarchist groups he worked with, led and/or inspired. He came to the US (but never became a citizen) and followers of his there were implicated in several high profile bombing attacks on US soil.

I'm not sure how different from al-qaeida this man and his group is for our purposes (non-citizen, active cells across the world but including US citizens and non-citizens carrying out systematic attacks on the US). I don't think it occurred to our government at the time that we should, or even could, be "at war" with them.

My broader point is that your positions seems to allow that upon any foriegn yahoo carrying out any attack (or attempt) on the US (I don't imagine it has to be the contintenal US) our executive can invoke a panoply of broad, unchecked war powers under his/her Commander in Chief powers. That view puts a great deal of broad, unchecked power into the hands of one person.

And you who adfvocate this view consider yourself to be appalled at Ceasarism???
 

Mr. W:

I'm not sure how different from al-qaeida this man and his group is for our purposes (non-citizen, active cells across the world but including US citizens and non-citizens carrying out systematic attacks on the US).

The fact that Galleani was not a US citizen is the sum total of his similarity with someone like bin Laden.

bin Laden financed and directed a foreign terror network which openly declared and prosecuted a military war against the United States across the world.

Galleani was a rabble rouser in the United States, who as far as the authorities could tell had not actually directed any of his followers' bombings. The US deported rather than prosecuted Galleani.

Remember when I previously observed that your hypothetical jihadi in a cave calling for Death to American was not at war with the United States and a President which waged war against the jihadi without a declaration was a Caesarist and also an international war criminal for waging war outside of self defense.

Galleani is that jihadi.
 

Galleani himself may not have been directly tied to the bombings but there was and remains little doubt that groups of anarchists, many of whom were not citizens and many of which had committed and would go on to commit acts of terror across the globe, referred to as Galleanists, worked together to attack the United States many times, killing dozens and terrorizing millions.

So, if you wish, we can drop comparisons of bin Laden and Galleani, but I don't see much difference between al Qaida and the Galleanists.
 

Mr. W: So, if you wish, we can drop comparisons of bin Laden and Galleani, but I don't see much difference between al Qaida and the Galleanists.

If the Galleanists organized into a single military force capable of launching coordinated attacks like the 9/11 attacks on the WTC/Pentagon and later the consulate in Benghazi, then their attacks would escalate from the sporadic historical individual acts of crime to a war.
 

Bart DePalma:

"I do not understand your second point. If AQ has surrendered some twenty years before, against whom is your Caesarist president warring?"

Against whatever f*ckhead kills somebody, or threatens to kill somebody, or tries to kill somebody, and claims to be 'waging war' against the US.

There has been and always will be such.

Read Lincoln on this.
 

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