Current Issue

Volume 93, Number 6

December 2018

After al-Qaida: A Prospective Counterterrorism AUMF

John Wynne

In the wake of the September 11th attacks, Congress passed the Authorization for Use of Military Force (2001 AUMF), which authorized the President to use military force against the responsible parties, namely al-Qaida and the Taliban. However, with al-Qaida now diminished, the 2001 AUMF, due to its explicit 9/11 focus, cannot continue to credibly provide the legal foundation for U.S. counterterrorism strategy against threats posed by new terror organizations. As other legal options fail either to restrain unilateral executive branch action or to legitimize the use of force, enacting a new counterterrorism-focused authorization for use of military force (AUMF) is the best method for enabling, while still controlling, the necessary use of military force against terrorist groups. Part I of this Note will examine the ways in which the 2001 AUMF, the President’s Article II powers, and non-military options are alone each insufficient to effectively address new terror threats. Part II will demonstrate why a new statutory AUMF is the best path forward by analyzing the strengths of the 2001 AUMF in both enabling and constraining the use of force. Part III will outline a prospective counterterrorism-specific AUMF, designed to offer the executive branch sufficient flexibility to meet new terrorist threats early, but, through statutory restrictions and increased congressional oversight, also provide clear and improved limitations on the unilateral presidential use of force.