According to a senior Obama Administration official, the President will turn his attention to possible reform of the 2001 Authorization for Use of Military Force (AUMF) later this year.  According to an article in last weeks’ Wall Street Journal, the President has said that his goal is “to revise and eventually repeal the authorization.”

On May 16, 2013, the Senate Armed Services Committee held a hearing entitled “The Law of Armed Conflict, the Use of Military Force, and the 2001 Authorization for Use of Military Force.”  The hearing included Administration officials and legal experts.

As I stated in my written and oral testimony, the AUMF “has acted, and still acts, as the legal framework for, among other things, targeting and detention operations.” I also noted that the AUMF is self-limiting as it: (1) is limited to al-Qaeda, the Taliban, and persons or forces associated with those organizations; (2) is limited by the principle that force should be deployed only in order to prevent any future acts of international terrorism against the United States; and, (3) incorporates and is limited by the law of armed conflicts and is consistent with prior force authorizations that have targeted non-state actors.

Two Administrations have relied on the 2001 AUMF as the legal underpinnings to justify targeting, detention, and a host of other activities designed to protect the country from terrorist attacks.

Notably, I testified that the elements of al-Qaeda, the Taliban, and associated forces “still pose a continuing threat to the United States,” but urged Congress to engage in a “thorough and dispassionate evaluation of the current threats.”

I warned that “repealing the AUMF prematurely would be unwise,” and that it would “signal, legally, that the war against al Qaeda is over, at a time when al Qaeda and associated forces continue in fact to wage war against the United States.” And I suggested that the “current AUMF should remain in place unless and until the narrow class of persons under its scope no longer poses a substantial threat to our national security.”

Recognizing that it is “not too early to begin thinking about what comes after the AUMF,” I suggested a framework for how the United States government should approach future threats:

  1. Whether we need to enact additional authorities for the use of military force must be “based on our national security needs.”
  2. The substance of the 2001 AUMF authorization should be used as a template so that the new authorization, however narrow, allows the President to use “all necessary and appropriate force” against those entities that pose a substantial threat to the United States.
  3. The new authorization, if indeed one is deemed necessary, must be “narrowly tailored, flexible legislation” that is prepared in “an open and transparent manner” in order to best serve the interests of the American people.
  4. Congress should consider building on the existing AUMF, rather than replace it prematurely.  The President has the option of not using the broad grant of authority in the existing AUMF.  Any radical, premature modification to the core AUMF grant of authority would cast “uncertainty on the legal basis for so many aspects of our campaign against al Qaeda.”

If or when the President turns his attention to reform of the AUMF, the Administration would be wise to follow that template.