At Lawfare, Jack Goldsmith has a short post this morning following up on a much longer one from May about the question of how far the Authorization for the Use of Military Force (AUMF) can be stretched. The original post followed a May congressional hearing in which Defense Department officials appeared to endorse an extremely broad reading of the AUMF that would allow the government to use force against Al Qaeda-associated groups in Mali, Libya and Syria. As Goldsmith wrote in May, the hearing made it “plain that the AUMF-war is much broader and much more easily expandable” than was previously believed, and that the Senate Armed Services Committee “has no idea how DOD is interpreting the AUMF.”
At the hearing, Senator Carl Levin asked the administration to provide the committee with an “existing list of groups that are affiliated with al Qaeda” and to let the committee know when changes are made to the list, and the witnesses promised to do so. Today, Goldsmith tells us:
I have it on reliable authority that DOD has responded to Levin’s request, albeit in a classified fashion. Apparently DOD answered numerous questions for the record by committee members, and some of the answers (the unclassified ones) will be released with the official print of the hearing transcript (which apparently has not yet been released).
This is, in some sense, a limited piece of good news. But it’s also a sign of just how bizarre it is that up until recently, the Senate committee responsible for overseeing the Defense Department did not know exactly which organizations the administration believed it had the legal authority to target. It’s hard to think of a better example to illustrate former senator Jim Webb’s thesis, argued in a recent cover essay in TNI, that Congress has become increasingly irrelevant to the making and functioning of the country’s foreign policy.
At this point, it is unclear if this list will be among the items declassified and made public. As Goldsmith argued in May, it should be. In his words, “It should not be a surprise to the American people . . . where and against whom Congress has authorized the President to use military force.” The fact that this even needs saying is remarkable. To argue that this list should stay classified, you have to believe that the U.S. public either should not know or does not need to know who its government considers itself to be at war with. Either assertion makes a mockery of even the possibility of democratic accountability when it comes to matters of war and peace.