May 15, 2013

THE OBAMA administration’s political and legal authority to wage war against al-Qaeda has steadily eroded. Both liberal and conservative members of Congress have challenged the administration’s lack of transparency in conducting drone attacks against alleged al-Qaeda operatives in Pakistan, Yemen and Somalia. Foreign allies as well as adversaries have asked whether the United States has arrogated the right to kill enemies anywhere in the world. Meanwhile, the appearance of new branches of al-Qaeda in northern Africa and, most recently, Syria has raised the question of whether the legal authority Congress granted in September 2001 for using military force applies to those groups.

President Obama has said that he wishes to introduce greater openness into counterterrorism operations, but he has not yet taken any substantial steps. Now legislators in both houses are undertaking their own initiatives. In the House, Rep. Mac Thornberry (R-Tex.), the vice chairman of the Armed Services Committee, has introduced legislation that would require the Defense Department to report to Congress all kill-or-capture operations it undertakes and deliver a written explanation of the legal basis and approval process used to place suspects on target lists.

Mr. Thornberry’s measure would be a step forward. But it still leaves important legal issues unaddressed, which is why we support an effort by the Senate Armed Services Committee to explore, beginning at a hearing Thursday, whether the 2001 Authorization to Use Military Force (AUMF) should be revised.

The law authorizes the president to use force against “those nations, organizations, or persons” responsible for the attacks on New York and Washington. The Bush and Obama administrations have been backed by the courts in interpreting that language to allow attacks on the Taliban and al-Qaeda as well as “substantial supporters” and “associated forces.” But many legal experts have questioned whether a law aimed at Osama bin Laden and his cadre could be used to justify a drone strike against jihadists plotting an attack against the United States more than a decade later and thousands of miles from Afghanistan.

A group of legal experts, including Robert Chesney of the University of Texas, Jack Goldsmith of Harvard, Matthew Waxman of Columbia and Benjamin Wittes of the Brookings Institution, has proposed that Congress consider revising the AUMF to authorize presidents to designate emerging al-Qaeda affiliates that pose a threat to the United States as covered by the force authorization. Such legislation could put into law criteria for adding militants outside conventional battle zones to strike lists and require greater disclosure. Sen. John McCain (R-Ariz.) has said he will seek to put together a bipartisan group to consider such reforms.

Opponents say that any such legislation risks placing the United States on a permanent war footing; some argue that the United States should instead move toward declaring the conflict against al-Qaeda over. That would mean closing the Guantanamo Bay prison and returning to pre-9/11 methods for combatting international terrorism.

No one wants an endless war, which is why the AUMF amendment proposal includes a sunset provision. But the reality is that al-Qaeda and its sucessors appear likely to pose a serious threat to the United States for the foreseeable future — as the recent terrorist attacks in Benghazi and Algeria demonstrated. Countering the jihadists with intelligence and law enforcement tools manifestly failed before Sept. 11, 2001. Congress would be wise to ensure that this president and his successors have the authority they need to defend the country.