AUMF: Rewrite and Renew

Law enforcement won't be enough to keep Al Qaeda et al at bay.

With the end of combat operations in Afghanistan expected next year, we should resist the urge to declare the “War on Terrorism” over and revert solely to a law-enforcement model of counterterrorism. To ensure the nation’s counterterrorism strategy does not regress to a pre–9/11 framework, Congress should reauthorize and reframe the Authorization of the Use of Military Force (AUMF).

Twelve years ago, Congress passed the AUMF to permit the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the terrorists who conducted the 9/11 attack. Congress’ intent was to authorize military force against the group now known as Core al Qaeda, the Afghan Taliban and any other individual who was complicit in the attack itself. The AUMF did look to the future, allowing military actions against Core al Qaeda, and others connected to it, to prevent future attacks on the homeland.

Since that time, the threat has evolved. Other terrorist groups changed their names to identify themselves as al Qaeda affiliates and, in some cases, conducted attacks on the United States and its allies. Some of these groups are closely tied to Core al Qaeda. Other groups’ connections are tenuous at best. Still others, like al Shabab, are closely connected to Core al Qaeda, but forgo the al Qaeda moniker for their own strategic reasons.

While facing this increasingly ambiguous threat, the United States incrementally forwent military options. For example, long-term military detention of combatants, historically recognized as a humane alternative to killing them, has largely been abandoned. Use of armed drones, essentially the logical evolution of cruise missiles, is now considered controversial. Meanwhile, opponents attack the AUMF itself, arguing the law authorizes perpetual war and indefinite detention.

The counterterrorism community responded to these shrinking tactical options by taking a hybrid approach. In two separate counterterrorism operations, Ahmed Abdulkadir Warsame and Abu Anas al Libi were seized by special operations forces acting on information provided by the intelligence community. Both operatives were held in temporary military detention at sea while they were interrogated separately by intelligence and criminal investigators. Warsame and al Libi were subsequently rendered to the United States and placed in the criminal-justice system. While both operations represent huge successes, they hinged on key factors which will not always align: the subjects were in areas reachable by commandos, they were close enough to warships where they could be held, and enough evidence was gathered to support criminal prosecution. Future presidents will likely find themselves faced with an imminent threat from groups or individuals not clearly defined as Core al Qaeda, where capture, rendition, and criminal prosecution are not available options.

The United States needs to maintain its war footing against Core al Qaeda and remove the ambiguity in the AUMF. With the military pullout in Iraq and Afghanistan, Congress must recognize that the war on al Qaeda is no longer fought on a traditional battlefield bound geographically and temporally. The AUMF should allow military force to be used on the high seas and in foreign countries where their governments are unable or unwilling to neutralize terrorist groups which threaten the United States.

A reframed AUMF needs to clarify the enemy by requiring the president to designate, by written finding, which groups are considered co-belligerents of Core al Qaeda. Congress should also expand the AUMF beyond these groups to any foreign group which has conducted, or is planning to conduct, a terrorist attack on the United States. These findings should be extended to foreigners located overseas, who may not be identified members of known terrorist groups, who are planning, or have carried out, terrorist attacks on the United States. Absent extraordinary circumstances, these designations should be public, however the intelligence supporting them may remain classified and reported to the congressional intelligence oversight committees. The presidential findings should be renewed annually, demonstrating the continued state of hostilities between the United States and each specific group or individual.

Military force and criminal justice are not mutually exclusive processes. Terrorists are combatants, though they surrender immunity by violating the generally accepted laws of armed conflict. They are criminals and should be treated as such, but the criminal justice system is not a shield from military action. Congress and the president should explicitly state as much by renewing, clarifying and expanding the AUMF.

Charles E. Berger is an Assistant Special Agent-in-Charge of the Federal Bureau of Investigation and is currently on sabbatical at the Council on Foreign Relations as the National Intelligence Fellow. These are his views and do not necessarily reflect the views of the FBI.