When a government is accused of activities that stretch or violate the law, it has three choices: 1) change the activities to conform with the law; 2) change the law to conform with the activities; or 3) lie (about the nature of the activities, the meaning of the law, or both).
Option 3 isn't a comfortable one for the Obama administration, which is, thank heaven, not prone to outright lying. Some senior officials tolerate a moderate amount of fudging and obfuscation, but when the fudge factor gets too high, it induces visible queasiness. Over the last couple of weeks, we've seen more than a little such discomfort on the faces of those stuck with justifying U.S. drone policy to Congress and the public.
That's not surprising: As the targets of U.S. drone strikes have expanded from senior Taliban and al Qaeda operatives to a far broader range of individuals with only the most tenuous links to al Qaeda, the administration's legal arguments for targeted killings have grown ever more tortured and complex. In particular, it's gotten progressively more difficult for officials to avoid blushing while claiming that U.S. drone policy is fully consistent with Congress's 2001 Authorization for Use of Military Force (AUMF), which authorizes force only against those who bear some responsibility for the 9/11 attacks.
With Option 3 -- lie, lie, lie -- off the table, and fudging and obfuscation growing harder to comfortably sustain, the thoughts of administration officials turn naturally to Option 2: change the law. Thus, as the Washington Post reported last weekend, some administration officials are apparently considering asking Congress for a new, improved "AUMF 2.0," one that would place U.S. drone policy on firmer legal footing.
Just who is behind this notion is unclear, but the idea of a revised AUMF has been gaining considerable bipartisan traction outside the administration. In a recent Hoover Institution publication, for instance, Bobby Chesney, who served in the Obama Justice Department, teams up with Brookings's Ben Wittes and Bush administration veterans Jack Goldsmith and Matt Waxman to argue for a revised AUMF -- one that can provide "a new legal foundation for next-generation terrorist threats."
I'm as fond of the rule of law as the next gal, so in a general sense, I applaud the desire to ensure that future executive branch counterterrorist activities are consistent with the laws passed by Congress. But "laws" and "the rule of law" are two different animals, and an expanded new AUMF is a bad idea.
Sure, legislative authorization for the use of force against "next generation" terrorist threats would give an additional veneer of legality to U.S. drone policy, and make congressional testimony less uncomfortable for John Brennan and Eric Holder. But an expanded AUMF would also likely lead to thoughtless further expansion of targeted killings. This would be strategically foolish, and would further undermine the rule of law.
An expanded AUMF is also unnecessary. Even if Congress simply repealed the 2001 AUMF (as the New York Times editorial board urges) instead of revising it, the president already has all the legal authority he needs to keep the nation safe.
If U.S. drone policy is currently on shaky legal ground, it's not for lack of inherent executive authority (or international law authority) to use force against any terrorist organization that poses an imminent and grave threat to the United States. U.S. drone policy is on shaky legal ground because the administration has lost sight of the difference between threats that are imminent and grave and threats better characterized as speculative and minor. We've lost all sense of perspective, and strategically, we've lost the ball.
Rather than fudging the law and the facts, or changing the law, the administration would do better to revert to Option 1: reform U.S. drone policy to comply with longstanding legal norms governing the use of force.
Ancient History: 9/11 and the AUMF
Start with some background. The original AUMF was passed on September 14, 2001. It gives the president congressional blessing to
[U]se all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
The 2011 AUMF is forward-looking, insofar as its language is focused on prevention rather than retaliation, but it's also backward-looking, insofar as force is explicitly authorized only against those with responsibility for the 9/11 attacks.