The other key move in the gradual expansion of the scope of the 2001 AUMF was the conflation of detention authority with the authority to use lethal force. Logically, as the Supreme Court noted in 2004, a party to a conflict has the power to detain those it has the power to kill: If it would be lawful to shoot an enemy combatant, it must be lawful to capture and hold him instead. Working backward from this principle, the Obama administration appears to have reasoned (quite fallaciously) that if it's lawful to detain an individual, it's equally lawful to use force against him.
This sort of reasoning contributed to the legal theories articulated in a recently leaked 2011 Justice Department white paper, which asserted that even a U.S. citizen can be targeted and killed outside any "areas of hostilities" if an unspecified "high level official" in the U.S. government concludes that he is a "senior operational leader" of al Qaeda or an "associated force." (The DOJ white paper relies both on law of war arguments and self-defense arguments, often semi-conflating the two.) Public statements by senior U.S. officials suggest that the current standard for targeting non-citizens is far lower: Any suspected "member" of al Qaeda or "associated forces" is targetable, as are those with "unique operational skills that are being leveraged in a planned attack." Even when an individual's identity is not known, targetability may be inferred from patterns of activity detected by surveillance.
AUMF 2.0!
In February 2012, Pentagon General Counsel Jeh Johnson insisted that the 2001 AUMF is the domestic legal "bedrock" of the military's drone strikes. But as Jack Goldsmith acknowledges, "The AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization."
John Bellinger, a former State Department legal advisor under President Bush, puts it a bit more bluntly: The AUMF is "getting a little long in the tooth." Like it or not, the language of the AUMF is still clearly "tied to the use of force against the people who planned, committed, and or aided those involved in 9/11," says Bellinger. "The farther we get from [targeting] al-Qaeda, the harder it is to squeeze [those operations] into the AUMF."
Thus the clamor for a revised AUMF. If militant groups with no connection to 9/11 can't be shoehorned into the 2001 AUMF, let's just expand the AUMF!
But this begs the essential question: Why exactly is the United States chasing after every two-bit Islamic terrorist on the planet? With the sole exception of 2001, terrorist groups worldwide have never managed to kill more than a handful of Americans citizens in any given year. According to the State Department, 17 American citizens were killed by terrorists in 2011, for instance. The terrorist death toll was 15 in 2010, and nine in 2009.
These deaths are tragedies -- but keep the numbers in perspective. On average, about 55 Americans are killed by lightning strikes each year, and ordinary criminal homicide claims about 16,000 U.S. victims each year. No one, however, believes we need to give the executive branch extraordinary legal authorities to keep Americans from venturing out in storms, or to use armed drones to kill homicide suspects.
Please, no emails accusing me of not taking terrorism seriously. Terrorism is a very real problem, and we can't ignore it, any more than we should ignore violent crime or public health threats. Like everyone else, I worry about terrorists getting ahold of weapons of mass destruction. But terrorism is neither the only threat nor the most serious threat the United States faces, and armed drones are not the only tool in the U.S. arsenal against terrorism.
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