Running Head: THE AUTHORIZATION OF USE OF MILITARY FORCE
The Authorization for Use of Military Force: Executive Unilateralism and Americanized Warfare Zachary J. Adams Norwich University
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THE AUTHORIZATION FOR USE OF MILITARY FORCE 2 Introduction: The “War on Terrorism” following the atrocious attacks endured on September 11th, 2001 did not assume the common characteristics of conventional warfare. Modern terrorist tactics lack the traditional styles of warfare and members of terrorist organizations are no longer franchised to particular states. As a result, a wide geographical range of terrorist cells and anticipated attacks have become evident. It was once an uncomplicated process identifying enemies whereas today many terrorists reside within friendly states. Terrorist plots within the world’s most predominant nations now include the United States, and more recently France with the recent attacks on the Charlie Hebdo headquarters. As terrorist regimes have progressively strengthened over time, uncertainties have also surfaced emphasizing methods to mediate conflict and the applicability of detaining enemies by any nature. After the attacks, President Bush confronted the ambiguities of newage terrorist behaviorisms and the future of warfare through his post-9/11 statement: “Our enemy is a radical network of terrorists, and every government that supports them. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.” (Bush, 2001) As a result, the contents of this paper will outline and legitimize the Bush Administration’s implementation of the Authorization for Use of Military Force (AUMF). Through interpretative analysis of the international laws of war (jus in bello), the American Executive has effectively obtained the capacity to unilaterally conduct war and has utilized the AUMF to: overthrow Al-Qaeda-linked organizations and governing bodies, indefinitely
THE AUTHORIZATION FOR USE OF MILITARY FORCE 3 detain suspected individuals, and operate unmanned drones potentially eliminating suspected terrorists and known associates abroad. AUMF and International Law: The Bush Administration attained the authority to conceptualize and justify the AUMF through constitutional means because of the reforms made to the United Nations Charter and international laws outlining conflict. Bradley & Goldsmith (2005) state that the “…international law role for declarations of war has largely disappeared. The United Nations Charter, which now regulates the portion of the international laws of war known as jus ad bellum (right to war), refers not to “war,” but rather to “armed attack,” “use of force”, and “threat[s] to the peace”” (p. 2061). Not only have reformulations been applied to the right to law, but also to the laws of war (jus in bello). With the reinvention of the laws and right of war, the United States’ Executive presumes the ability to evade the Congressional powers of declaring war. With the changes to the Geneva Conventions of 1949, the guidelines of jus in bello apply to (Bradley & Goldsmith, 2005) “cases of declared war” but also more broadly to “any other armed conflict” between states, regardless of whether a “state of war” was recognized by one of the parties” (p. 2061). Because of this particular reinterpretation of the United Nations Charter concerning the rights and laws of war, it has become strikingly apparent that no sovereign nation since WWII has declared war that was authorized by Congressional consent. In retrospect, the tragic events that took place on September 11th indicated that the Executive possessed the capacities to invade Afghanistan to eliminate the organization held responsible. Furthermore, the “war on terror” will perilously persist
THE AUTHORIZATION FOR USE OF MILITARY FORCE 4 granting the Executive the power to do so based solely on the interpretation and reevaluation of international law. Executive Powers of Indefinite Detention: While many perceive the Executive’s authority to indefinitely detain individuals both in the U.S. and abroad, due process must be granted for enemy combatants holding U.S. citizenship; this is specifically emphasized under the terms of the AUMF. According to Bradley & Goldsmith (2005, p. 2094), the international laws of war permit the detention of “enemy combatants without trial until the end of hostilities.” The directives of international law, under the circumstances of detention, opine that detention can be authorized under the terms of the AUMF if and only if said individuals are enemy combatants and conflict is proceeding. In the case of Hamdi v. Rumsfeld (2004), the judges rejected Hamdi’s Article 5 of the Geneva Conventions claim stating that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress,” (p. 7) and concluded that the AUMF specifically bestowed the Executive, by the powers of Congress, the authority to detain “Hamdi until the cessation of hostilities” (p. 8). Even though Hamdi’s court ruling was later overturned and he was returned to Saudi Arabia the following year (2005), he was still indefinitely detained under suspicion of terrorist behavior until proven innocent. Other controversial limitations of the Executive’s power also arise regarding the duration and treatment of “prisoners of war.” The actions of the Legislative branch are fully responsible for the Executive’s broadening powers. Moreover, the terms of the AUMF authorize the Executive (AUMF, 2001) the powers “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned,
THE AUTHORIZATION FOR USE OF MILITARY FORCE 5 authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…”(Section A). It is evident that international law does more than provide a distinctive guideline for global behavior; it also obtains the capacity to advise Congress on the (un)limited powers of the Executive. The (Il)legality of Drone Warfare: Pursuant to the Congressional legalization of AUMF following the aftermath of 9/11, drones can be issued to target and eliminate enemy combatants. The specificities of U.S. drone warfare hold no international boundaries as long as the defined targets, under the legal jurisdiction of the AUMF, are of Al-Qaeda or terrorist affiliation. In accordance with international law, the Bush Administration justified that international drone strikes were legitimate (Sterio, 2012) as they respected the “principles of necessity, proportionality, distinction, and humanity” exemplified in jus in bello (p. 209). The laws of war emphasize that all armed attacks during times of conflict may only be operational if congruent to overall military objectives; such objectives must be well-portrayed and must identify a military advantage. According to Sterio (2012, p. 210) and the principles of Just War Theory: “Force may be used if the military objective sought is necessary, if the suffering caused by the use of force is proportionate to the military objective, if the military commander can properly distinguish between military and nonmilitary targets, and if the military commander has adopted limited means of injuring the enemy, which minimize unnecessary suffering.” Under these addressed circumstances, initiating drone warfare can indeed satisfy the requirements of jus in bello and the rules prescribed by the Geneva Conventions if and
THE AUTHORIZATION FOR USE OF MILITARY FORCE 6 only if drone attacks are not incommensurate to actual military objectives; such attacks must significantly outweigh the risks of inducing potential civilian harm and suffering. Conclusion: The auspices of international law, specifically jus in bello, are both direct yet ambiguous in essence. The laws of war are well-defined, yet the interpretation of international law decrees is forever altering. While the architecture of jus in bello is quite articulate, there’s still space for self-explanation leaving much as general guidelines instead of actual rules of law, especially concerning the future of drones. More recently, drone warfare has come under scrutiny because of the secrecy that follows. Many international courts, sovereign governments, and humanitarian advocates have advised that national intelligence agencies, particularly the CIA, adopt more publiclytransparent initiatives in order for legal evaluation of such programs be conducted. It is apparent that drone technology is swiftly influencing the future of Americanized warfare, mainly through the “war on terrorism.” While the former Bush Administration first employed the power of drone warfare, the current Obama Administration must transition to a more coherent and translucent drone program assuring the international system that American intentions are pursuant to international law and are legally justified.
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Works Cited: Authorization for Use of Military Force (AUMF). (September, 2001). United States Senate, Senate Joint Resolution 23, sections A & B. Bradley, A. C. & Goldsmith, L. J. (May, 2005). Congressional authorization and the war on terrorism. Harvard Law Review, 118(7), pp. 2061-2094. Bush, W. G. (September 20th, 2001). Address to a joint session of Congress and the American people. Hamdi v. Rumsfeld (June 24th, 2004). 542 U.S. 507. Opinion of Judge O’Connor, J. Supreme Court of the United States, pp. 7-8. Sterio, M. (2012). The United States’ use of drones in the war on terror: The (il)legality of targeted killings under international law. Journal of International Law, 45(1 & 2), pp. 209-210.