WASHINGTON -- When Sen. Rand Paul (R-Ky.) took to the Senate floor on Wednesday to filibuster the nomination of John Brennan for CIA director, he knew the ostensible goal was an impossible one. "I can't ultimately stop the nomination," he admitted. What he really hoped, he said, was to set some clear limits on the president's power to kill using drones.
Even that may prove impossible. It's unlikely that Paul's filibuster will end with major concessions from President Barack Obama. But there is another option that strikes at the heart of Obama's legal justification for drone strikes: Paul, or any other congressman, could push to reform the Authorization for the Use of Military Force.
The original AUMF, passed in the frantic days after the Sept. 11, 2001, terrorist attacks, granted then-President George W. Bush a wide legal berth to use "all necessary and appropriate force" against any organizations, nations or individuals who were in any way connected to the attacks. It has widely been accepted as authorizing the president to take military action -- including drone strikes -- against anyone actively involved with al Qaeda or its networks, even to this day.
Reliance on the AUMF is why a recent white paper outlining the Obama administration's understanding of its authority to kill terrorists was limited to members of "Al Qaeda and associated forces." (Legal experts say that while the administration may also believe it has the power to carry out these strikes under Article II of the Constitution, the White House would much prefer to have the benefit of congressional approval.)
But as Steve Coll wrote recently in The New Yorker, al Qaeda offshoots have sprung up across the Middle East and Africa, stretching the definition of the group beyond credulity -- and, by some reckonings, to a point where the AUMF may no longer apply:
This March marks ten years since the United States led an invasion of Iraq based on bad intelligence about Saddam Hussein's weapons-of-mass-destruction programs. That dark anniversary offers a reminder, if one is required, that in any conflict where a President claims war powers the Chief Executive's analytical precision in describing the enemy is a grave responsibility. A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda's derivative groups today is false. If Al Qaeda is not coherent enough to justify a formal state of war, the war should end; if the Administration wishes to argue that some derivative groups justify emergency measures, it should identify that enemy accurately.
This was the challenge posed at one point in Obama's first term, when, as Newsweek's Daniel Klaidman reported in his book Kill or Capture, State Department Legal Adviser Harold Koh had to wrestle with other national security lawyers to convince them that the U.S. could not legally target a drone strike against a member of al-Shabab, a terrorist group in Somalia that has been loosely linked to al Qaeda.
Koh prevailed, but he left the administration early this year. Whether the fight over non-al Qaeda targets is still being waged, or won, is anyone's guess.
"We don't know if they've already crossed that bridge or not, but if they haven't, it's required lawyers at [the] Justice [Department] or elsewhere to engage in some really strained legal interpretation as to whether somebody is associated, affiliated with al Qaeda or a co-belligerent," said John Bellinger, a former State Department legal adviser under Bush and now a partner at the law firm Arnold & Porter. "My guess is that the way the Obama administration has had to stretch some of these groups to make them fit into the original law would make some of the Bush administration's decisions look very straightforward."
Bellinger is among those to whom the idea of a new AUMF appeals because it would help codify a practice that is not only probably taking place -- the targeting of individuals with a tenuous connection to al Qaeda -- but that he believes is in America's national security interest.
"At some point I think they clearly will need a new [AUMF]," he said. "Any president, including President Obama, will do what it takes to protect Americans and protect American security."
Others, like Rep. Barbara Lee (D-Calif.), insist it's time for a new AUMF because the old one granted the president far too much power and needs to be reined in.
"As the only member of Congress who voted against this blank check, I believe now more than ever that we must repeal it," Lee wrote in a February letter to the Los Angeles Times. "We need a full debate of the consequences of the September 2001 action, and meaningful oversight by Congress is vital."
Lee has made several attempts over the years to reform or repeal the AUMF, none of which have gained much traction on Capitol Hill.
As for Paul, he did mention the AUMF -- and another, later Iraq War authorization -- at various points in his filibuster. But he didn't say whether he considers its reform a legislative priority.