Termination of AUMF: A Shift from War to Crime Paradigm?

No nation could preserve its freedom in the midst of continual warfare.” – James Madison –

In a speech delivered at the National Defense University (NDU) on May 23, 2013, President Obama made it clear that his Administration would not seek any mandate extension or expansion to the Authorization for Use of Military Force (AUMF) that was signed by President Bush in September 18, 2001.[1] He also stressed that he will engage Congress and American people to refine the present AUMF and to ultimately repeal it, while determining to seek ways to continue fight against terrorist without have to keep America on a perpetual wartime footing.[2] Termination of AUMF could precisely mean an end of Congressional authorization, but whether does it end the resort to war paradigm or does it suggests another form of approach is still far from clear.

Termination of AUMF would simply suggest that the Congressional authorization – which authorized President to use military force against nations, organizations, or persons that he determined related to 9/11 attacks – would no longer in force.[3] Nevertheless, this does not necessarily means that President could not act independently to repel and to protect American people from attacks or against imminent threat of enemy’s attacks. Indeed, most US constitutional law scholars recognize the President’s broad power to use the armed forces in defense of national interest without formal authorization from Congress (Article II Power).[4] Furthermore, international law provides the legal framework for US in its pursuit to subdue al Qaeda and its associated forces under the inherent right to self-defense as recognized under Article 51 of the United Nations Charter.[5] However, on the contrary, as evinced in his speech, President intended to work with Congress to determine how US can continue to fight terrorists without keeping America on a perpetual wartime footing.[6] If such path is taken, it could mean that his Administration will jettison war paradigm in its pursuit of winning the war against al Qaeda and its associated forces.

As simplistic as it may sound, if war paradigm is to be abandoned, then it is, indeed, very interesting to see how the Administration will apply crime paradigm.[7] The use of lethal force would be restricted; detention would be lawful only if criminal charges were lodged; and any criminal trials would have to be held before ordinary Article III civil courts.[8] In practicality, such crime paradigm is not workable. Scholars had argued that exercising crime paradigm with all of its restrictions would make sense in a civil society, where criminal law can provide adequate deterrence even with a limited success rate in the court room. However, in the fight against al Qaeda and its affiliated forces, such deterrence does not work.[9]

All in all, termination of AUMF does not necessarily mean that the Administration could not resort to military force to subdue al Qaeda and its affiliated forces. In addition to that, international law strengthens and provides legal framework under the self-defense doctrine as recognized in Article 51 of the UN Charter. Even though the Administration had affirmed that there is a need to refrain America from a perpetual wartime footing, such tendency would not harm America’s capability to resort to wartime paradigm.

[1] President Barrack Obama, Address at the National Defense University (May 23, 2013) available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university  (last visited Oct. 6, 2013)

[2] id.

[3] Pub. L. No. 107-40, 115 Stat. 224 (2001)

[4] James P. Terry, The President as Commander in Chief, 7 Ave Maria L. Rev. 391, 405 (2009).

[5] Harold Hongju Koh, Legal Adviser, U.S. Department of State, Remarks at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at http:// www.state.gov/s/l/releases/remarks/139119.htm (last visited Oct. 6, 2013)

[6] Supra note 1.

[7] Robert J. Delahunty, Obama’s War Law, 11 Engage: J. Federalist Soc’y Prac. Groups 80, 80 (2010)

[8] Id.

[9] Ruth Wedgwood, Fighting a War under its Rules, May-June 2004 Issue Foreign Affairs Magazine.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s