The Washington Post, the AUMF, and Self-Defense

Ben quotes from this morning's Washington Post editorial on AUMF reform, the last two sentences of which assert that "Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to ensure that this president and his successors have the authority they need to defend the country." There are at least two problems with this statement, both of which go right to the core of the editorial--and of the larger debate over whether a new AUMF is necessary: First, is it really "wise" for Congress to spend its limited time providing the President with use-of-force authority he doesn't think he needs? Second, and more significantly, a lack of congressional action does not prevent the President from acting in self-defense where necessary. The age-old debate over the scope of the President's "inherent war powers" is primarily about their scope, not their existence. Put another way, the Post's not-so-subtle insinuation to the contrary notwithstanding, it wasn't the absence of an AUMF-like statute that prevented the Bush Administration from stopping the 9/11 attacks; it was a breakdown in the sharing of intelligence and law enforcement information. (That's why Jen and I dismissed this argument in our paper as a "red herring.") Instead, the real question is why self-defense authorities would be inadequate in cases in which law enforcement and intelligence tools prove insufficient and/or unavailable. To that, this morning's editorial has no answer. [Update: As several readers have written in to point out, the best evidence that the U.S. did not lack legal authority to use force against al Qaeda on or before September 11 is the fact that we did in fact use such force--e.g., in response to the 1998 embassy bombings.]