Wednesday, July 13, 2011

DEF Event: The Role of Congress in Authorizing the Use of Force

Bob Feidler, Director, Defense Education Forum

At a recent program cosponsored by the Defense Education Forum and American Bar Association Committee on Law and National Security, legal scholars and staff from key Congressional committees reviewed the role of Congress in approving discrete, limited use of force today, either against state actors like Libya or diffuse terrorist groups like al-Qaida in the Arabian Peninsula (AQAP).  

Some of the panelists expressed the belief that the Authorization for Use of Military Force (AUMF), passed in the wake of 9/11, has become dated and needs to be rewritten by Congress to clarify the powers of the Administration and whether the War on Terrorism is still primarily a military use of force or should be handled as a criminal issue, which is the European approach. 

In the case of Ahmed Abdulkadir Warsame, an alleged senior al-Shabab Somali terrorist with links to AQAP who was captured on April 19th, what we’ve seen is a new hybrid approach - military capture and civilian trial – that attempts to bridge the extremes of the military versus the criminal approach to terrorism.

By not bringing Warsame to Guantanamo, and by bringing him to New York for civilian trial, Congress and the Administration seem to be odds over the proper way to handle terrorists. Congress has been adamant about NOT permitting Guantanamo detainees to come to the United States. Of course, Warsame never was a Guantanamo detainee – perhaps to ensure that he could be brought to the United States and tried in the Federal courts. 

Also discussed was whether Bin Laden’s death and the Arab Spring, a potential strategic defeat for al-Qaida in the region, obviate the need for the AUMF, or least necessitate its clarification. If they have been defeated, are we any longer at war? If we are not at war, does the AUMF need more precision?

For further reading, I recommend a July 2011 article by David Kris (who recently stepped down as the Assistant Attorney General for the National Security Division at the Department of Justice) titled “Criminal Prosecution as a Counterterrorism Tool.”  The following is an excerpt from the introduction:

“This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values.”

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