Since 9/11, we've gotten much, much better at tracking terrorist activity, disrupting terrorist communications and financing, catching terrorists and convicting them in civilian courts, and a wide range of other counterterrorism measures. Much of the time, these non-lethal approaches to counterterrorism are just as effective as targeted killings. In fact, there's growing reason to fear that U.S. drone strikes are counterproductive: As no less an authority than retired General Stanley McChrystal said in February, "The resentment created by American use of unmanned strikes...is much greater than the average American appreciates. They are hated on a visceral level, even by people who've never seen one or seen the effects of one," and they fuel "a perception of American arrogance."
Former Director of National Intelligence Dennis Blair agrees: The United States needs to "pull back on unilateral actions...except in extraordinary circumstances," Blair told CBS News in January. U.S. drone strikes are "alienating the countries concerned [and]...threatening the prospects for long-term reform raised by the Arab Spring....[U.S. drone strategy has us] walking out on a thinner and thinner ledge and if even we get to the far extent of it, we are not going to lower the fundamental threat to the U.S. any lower than we have it now."
To be fair, many proponents of a revised AUMF, such as Chesney, Goldsmith, Waxman, and Wittes, acknowledge these concerns. They nevertheless argue that it's possible to draft an AUMF that both provides the president with needed legal authorities and provides adequate safeguards against abuse and infinite expansion of the war on terror.
I'm not convinced. For one thing, it was some of the best legal minds in the Obama administration that managed to produce the 2011 DOJ white paper on targeted killings of U.S. citizens, and that was a piece of legalistic garbage that enraged liberals and conservatives alike. Why imagine that administration input into a new AUMF would be any better than that DOJ white paper? For another thing, there's Congress. If you think this Congress is going to develop a responsible, bipartisan approach to counterterrorism and the use of force -- one that respects both U.S. constitutional norms and international law -- I have a bridge in Brooklyn to sell you.
A revised AUMF is likely to do precisely what the Bush administration sought to do in the run-up to the Iraq War: codify a dangerous unilateral theory of preemptive war, and provide a veneer of legality for an open-ended conflict against an endlessly expanding list of targets.
There's always Option 1
Why open up that can of worms? If what we're concerned about is protecting the nation, we don't need a revised AUMF.
With or without the 2001 AUMF, no one seriously doubts that the president has inherent constitutional authority (and international law authority) to use force when necessary to prevent imminent and grave harm to the United States. But the key concepts there are "necessary," "imminent," and "grave," which means that unilateral, non-congressionally authorized uses of force should be reserved for rare and unusual circumstances -- as indeed they have been, for most of U.S. history.
AUMF or no AUMF, if the United States finds credible evidence of an imminent and grave terrorist attack -- of the 9/11 variety -- no one's going to give the president a hard time if he kills the bad guys before they have a chance to attack us. And trust me: If the president has solid evidence of such an impending attack, it won't matter if the terrorists are an al Qaeda offshoot or a rogue group of Canadian girl scouts.
And if, despite our best efforts at prevention, another serious terrorist attack occurs in the future, Congress will undoubtedly be quick to give the president any additional authorities he needs -- with the same speed with which Congress passed its 2001 authorization to use force.
In the end, it's not that complicated. If we can't shoehorn drone strikes against every "associate of an associate" of al Qaeda into the 2001 AUMF, we should stop trying to stretch or change the law. Instead, we should scale back the targeted killings.
It's past time for a serious overhaul of U.S. counterterrorism strategy. This needs to include a rigorous cost-benefit analysis of U.S. drone strikes, one that takes into account issues both of domestic legality and international legitimacy, and evaluates the impact of targeted killings on regional stability, terrorist recruiting, extremist sentiment, and the future behavior of powerful states such as Russia and China. If we undertake such a rigorous cost-benefit analysis, I suspect we'll come to see scaling back drone strikes less as an inconvenience than as a strategic necessity -- and we may come to a new appreciation of counterterrorism measures that don't involve missiles raining from the sky.
This doesn't mean we should never use armed drones -- drones, like any other weapons-delivery mechanism, will at times be justifiable and useful. But it does mean we should rediscover a long-standing American tradition: reserving the use of exceptional authorities for rare and exceptional circumstances.
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