I'm a law professor, but I generally avoid mentioning this to casual acquaintances, since they're apt to flee upon discovering it. They fear, I suppose, that I might at any moment launch into a tedious exegesis of the Uniform Commercial Code, or begin to elaborate on the fine distinctions between the law of armed conflict and the law concerning the use of force in national self-defense. So I try not to be the female law professor equivalent of "that guy." I try, in other words, to keep from boring everyone to tears with legal analysis.
But sometimes I just can't help it! Particularly when I hear government officials mangle, muddle, manipulate, and murkify the law, as I did at a Senate hearing on law and counterterrorism last week, I find that I just...can't...stop...myself. I have to start ranting and raving.
Because this stuff's important, okay? For some, it literally has life or death implications.
So bear with me while I rant.
On May 16, I testified at a Senate Armed Services Committee hearing. I described this above as a hearing on law and counterterrorism because I was trying to lead you into this gently, but technically, it was a hearing on the law of armed conflict, the use of military force, and the 2001 Authorization for Use of Military Force (AUMF). I know, even the description is snooze-inducing. But stay with me now. Four Pentagon representatives also offered testimony on the legal basis for U.S. targeted killings, but by the end of last week's hearing, I was more confused than ever about precisely what legal authorities the executive branch believes it possesses.
Normally, law professors thrive on confusion: We foment it in the classroom whenever possible. But while confusion is good for the law student soul, it's not so good for the executive branch of the U.S. government, and not so good for democracy or the rule of law.
Once upon a time, President Obama was a law student himself, and he later spent years lecturing at the University of Chicago Law School. He knows -- or certainly should know -- the importance of precision and clarity when it comes to the law.
On Thursday, Obama is set to give a speech at the National Defense University on U.S. counterterrorism policy. During that speech, he's widely expected to address the "legal framework under which we take action against terrorist threats, including the use of drones." It's about time. But will his remarks actually satisfy the rule-of-law concerns that I and many others have raised, or will they, like last week's Senate testimony, just increase the general sense of murk and muddle?
If President Obama were visiting my classroom, here are five questions I'd ask him.
1) Mr. President, what -- if any -- limits do you believe the 2001 AUMF imposes on the use of military force, and what basis does Congress (or the public) have for evaluating whether your administration is respecting those limits?
On its face, the 2001 AUMF authorized the president to use force only against those responsible for the 9/11 attacks, and only for the purpose of preventing future attacks by such organizations against the United States. Yet the United States has reportedly used drone strikes to kill assorted "militants" and "extremists" who have no obvious link to 9/11 and no apparent likelihood of attacking the United States. (Case in point: the members of Somalia's al-Shabab.)
At last week's Senate hearing, administration representatives defended such strikes, distant as they appear to be from anything contemplated by Congress in 2001. In fact, they appeared to believe that the 2001 AUMF implicitly created an open-ended state of war that could potentially extend to al Qaeda's "associates" all around the globe. As long as the target is al Qaeda or its associates, they suggested, the president has, under the AUMF, the domestic legal authority not only to use drone strikes, but to send U.S. ground troops into combat in any country in the world without any additional authorization from Congress.
(Note: Senate hearings are matters of public record, but the full transcript currently remains behind a paywall. Sorry: Freedom isn't free! But if you're feeling really masochistic, you can watch the whole thing on video.)
Consider these exchanges:
When Sen. John McCain asked Acting DOD General Counsel Bob Taylor whether the 2001 AUMF could "be read to authorize lethal force against al Qaeda's associated forces" in countries such as Mali, Libya, and Syria, Taylor replied, "On the domestic law side, yes sir."
Sen. Lindsey Graham upped the ante: "Could we send military members into Yemen to strike against one of these organizations? Does the president have the authority to... put boots on the ground in Yemen?" Yes, Taylor responded, "Under domestic authority, he would have that authority."