May 23 (Bloomberg) -- President Barack Obama made a number of smart changes to the U.S. drone war and detention policies today, and they should leave all Americans deeply unsatisfied.
Why? Because refining individual elements of America’s global fight against Islamic terrorists will always come up short if the foundation -- Congress’s post-Sept. 11 authorization of the use of force against al-Qaeda -- is crumbling.
In addition to finally acknowledging that four U.S. citizens have been killed in drone strikes, Obama announced a new “policy guidance” that raises the bar for such attacks in Pakistan, Somalia, Yemen and other places where the U.S. isn’t overtly at war. Targets will be limited to those who “pose a continuing, imminent threat to Americans” and are deemed too difficult or dangerous to capture alive. This would seem to end so-called signature strikes, in which targets’ identities are unknown and they are chosen based on observations of suspicious behavior.
The president, when he was able to get a word in edgewise of a surprisingly persistent heckler at the National Defense University, also said he was renewing his effort to close the prison at Guantanamo Bay, Cuba. He will push to release more detainees to their home countries, including Yemen, to which he stopped transfers in 2010. Laudable initiatives, but they don’t clarify the futures of prisoners still deemed a threat to the U.S. or those whose homelands refuse their repatriation. (And, as long as Congress blocks the use of federal money to relocate them to the U.S., of course, Gitmo will stay open.)
All in all, this is progress. Yet nobody should consider this a redefining moment in the war against terrorism, or a real attempt, as Obama put it, to “define the nature and scope of our struggle.” In fact, the entire speech raises the question of whether, 12 years after the Sept. 11 attacks, we can continue to use that murderous assault to justify military action stretching from Pakistan to North Africa.
While Obama occasionally invokes his authority under Article II of the Constitution to protect American lives, the true constitutional basis for U.S. military action against terrorists remains Congress’s Sept. 14, 2001, authorization for the president to use all “necessary and appropriate force” against those who carried out the Sept. 11 attacks or who aided and harbored al-Qaeda.
That authorization made sense when it came to invading Afghanistan to hunt down Osama bin Laden and depose his Taliban protectors in the winter of 2002. It is a laughable predicate for launching missiles at al-Shabaab militants in Somalia today (even if you read into it, as the Obama administration has since 2009, an implicit right to target al-Qaeda’s “associated forces”). And its shakiness hurts the legitimacy of every other aspect of U.S. counterterrorism efforts, from drone strikes to Guantanamo to aiding the government of Mali.
Many in Congress think the same way: At last week’s lively Senate Armed Services Committee hearings, Senator John McCain, hardly a dove on Islamic extremism, questioned whether the authorization was still relevant, given the “dramatically changed landscape that we have in this war on Muslim extremism and al-Qaeda and others.”
Certainly, the large-scale troop pullout from Afghanistan next year should compel the Obama administration to present a new underpinning for the war on terrorism. “The Afghan War is coming to an end,” Obama said today. “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”
There are two real choices: The White House and Congress can pre-emptively establish a new legislative framework that allows the executive branch to broaden or shift its military efforts as it sees necessary, while still respecting the separation of powers. Or the U.S. can go back to the pre-Sept. 11 status quo, with the president relying on Article II authority for limited counterterrorism efforts and trusting that Congress can react quickly to authorize greater force in the event of another major event.
Attempts at forging a new framework are under way, drawing on a paper published by the Hoover Institution and written by several leading academics, including Harvard Law School’s Jack Goldsmith, who led the Justice Department’s Office of Legal Counsel under President George W. Bush.
In a nutshell, the proposal would let the executive branch add people and groups to a list of targets for military actions, similar to the State Department’s list of state sponsors of terrorism. The statute would have to define such terms as “imminent threat” and “belligerent act,” and the president would have to keep Congress (and, within national-security bounds, the public) informed, with all relevant intelligence documentation, every time it added a group or carried out a military mission. Equally important, the statute would be based on settled international law of national self-defense, and it would expire in, say, two years.
This proposal offers much to like: It would increase executive branch transparency and congressional oversight over military actions, further raise the evident-threat bar for drone strikes, and prevent us entering the state of “perpetual war” that remains a worrisome possibility under the non-expiring 2001 authorization.
That said, we can’t recommend it -- at least in its current form. Only Congress can declare war, and that includes naming who, exactly, we are declaring war against. Allowing the executive branch full discretion to add names to the list of enemy combatants undermines that constitutional principle, no matter how many hoops you make it jump through. Given the choice of replacing the current authorization with either the Hoover plan or the pre-2001 status quo, we would choose to turn back the clock.
Fortunately, we don’t have to make that choice now -- we have at least a year before the Afghan pullout renders the 2001 congressional measure completely moot. This is plenty of time to come up with more proposals and to better define the nature of the future threat.
The steps Obama announced today are improvements for that interim, but they leave us a long way from answering the question of whether we are, in fact, still at war.
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