Senator Corker on AUMF Reform

Senator Corker has an op-ed in the WP on the need to update the AUMF.   He documents the growth of extra-AUMF terrorist threats and then argues:

These incidents seem to suggest that the September 2001 Authorization on the Use of Military Force (AUMF) is too narrow and that the president is hamstrung by stale semantic distinctions. But there are also legitimate reasons to believe it is too broad. Both the Obama and Bush administrations have stretched the resolution’s authority well beyond its words to go after groups that have little to no connection to the attacks on the World Trade Center and the Pentagon. Aware of these problems, the Obama administration has hinted that the 9/11 AUMF might expire, at least in part, once combat operations ease in Afghanistan and the president draws down U.S. forces. Yet the administration has offered no legal justification for how important counterterrorism operations could then continue in places such as Somalia and Yemen — nor has it explained what would happen to enemy combatants held at Guantanamo Bay, Cuba. . . . An issue this critical to U.S. national security demands a robust debate to ensure that counterterrorism efforts reflect American values and laws, while respecting the president’s authority and preserving the flexibility to employ covert action in appropriate circumstances. The existing authority should be both narrowed and broadened — to create a mechanism for regular congressional oversight and reporting from the administration, including a possible sunset date to revisit the law, and to allow for the addition of organizations that were not involved in 9/11 but nonetheless pose a direct threat to the United States and our interests.

I think, contra Senator Corker, that the administration has explained the basis for post-AUMF operations in places like Somalia and Yemen – Article II.  But the Senator is right, I believe, that the administration has not taken a position on what would happen to GTMO detainees in a post-AUMF world.   (Former DOD General Counsel Jeh Johnson suggested in a speech in 2012 that detention authority might persist for a long while after the AUMF expires, and I think he further implied that there was no legal duty to release core al Qaeda members from detention, even after the armed conflict against al Qaeda expired, as long as the armed conflict persisted against al Qaeda affiliates.) Senator Corker also says that President Obama in his NDU speech last year “pledged to work with Congress on revising the 12-year-old resolution.”  The President’s precise words were: “I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.“  The administration would likely maintain that the ambiguous pledge to “engage” Congress did not commit it to revising the AUMF, but rather only to talking to Congress about counterterrorism authorities in a post-AUMF world, as it did, sort of, in last week’s hearing. The big question on AUMF reform remains: Will the administration unilaterally terminate reliance on the AUMF and rely on Article II alone (and if so, what happens to the GTMO detainees?); or will it work with Congress to revise the AUMF (and if so, will it be part of a grand bargain on GTMO reform)?