Libya(?) and the Case for a New AUMF
While we appreciate Ben's answer to our question (and share his view that we’re reaching the point of the conversation where everything has been said and everyone has said it), we still fail to understand how the Libya example illuminates what Ben—and Bobby, Jack, and Matt—think are the “problematic” aspects of an approach that requires the Executive to go to Congress if and when a specific situation arises that justifies a new authorization for the use of force.
If the Libya example is meant to highlight their
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While we appreciate Ben's answer to our question (and share his view that we’re reaching the point of the conversation where everything has been said and everyone has said it), we still fail to understand how the Libya example illuminates what Ben—and Bobby, Jack, and Matt—think are the “problematic” aspects of an approach that requires the Executive to go to Congress if and when a specific situation arises that justifies a new authorization for the use of force.
If the Libya example is meant to highlight their purported concerns over broadening (and potentially excessive) uses of force without clear congressional authorization, we’re baffled as to how their proposal—and its expansive delegation to the President of the power to determine when future use of force authorizations are appropriate—will “restrain military actions that presidents want to take and believe are in the national interest.” If, by contrast, they’re worried that the Executive might be “reluctant” to use force when it is appropriate and necessary without such congressional intervention, as they state in their initial paper, then Libya is in fact the perfect rejoinder.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
Jennifer Daskal is a Professor and Faculty Director of the Tech, Law, Security Program at American University Washington College of Law (WCL). From 2009-2011, Daskal was counsel to the Assistant Attorney General for National Security at the Department of Justice. She has published numerous journal articles and op-eds in, among other outlets, the New York Times, Washington Post, and The Atlantic. Daskal is currently a Scholar-in-Residence at New America.
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