Pentagon’s Top Lawyer: Our Current War Law Still Works, But We Need a Better One

The Pentagon’s top lawyer, Stephen Preston, defended the evolution of the legal justification for U.S. military action in the ongoing war on terrorism in a rare address on Friday, even as he urged Congress to pass a new authorization for the use of military force, or AUMF, against the Islamic State.

“The last 14 years have taught us that the threats we face tomorrow will not be the same as the threats we faced yesterday or face today,” Preston said, according to prepared remarks. “The challenge is to ensure that the authorities for U.S. counterterrorism operations are both adequate and appropriately tailored to the present and foreseeable threat.”

The topic is timely and not without controversy. Critics say the Obama administration has abandoned its pledges to rein in the executive branch’s unilateral use of force and to increase transparency by reforming or repealing Bush-era laws at the foundation of the global terrorism fight. The debate has been revived by the rise of the Islamic State; Congress is sitting on a White House draft for a new AUMF even as the U.S. military operation against the terrorist group enters its eighth month.

Preston, the Defense Department’s general counsel, is no stranger to this debate, having also served in the same post at the CIA. He spoke Friday at the annual meeting of the American Society of International Law, a nonpartisan nonprofit group founded in 1906 to study of international law.

Preston outlined the legal framework for military force that the Bush administration pulled together in the wake of 9/11. It rests primarily on the 2001 AUMF, a hastily passed law of just 60 words that still undergirds U.S. counterterrorism activity across the globe, and a 2002 AUMF that authorized the invasion of Iraq. Written with broad language and no sunset date, they still serve as the legal justification for U.S. military action more than a decade later.

“Although the 2001 AUMF was not unlimited, enacted as it was just a short time after the attacks, it was necessarily drafted in broad terms,” Preston said, according to prepared remarks.

Obama has said in several high-profile addresses that the 2001 and 2002 AUMF should be refined or repealed, and when the U.S. launched operations against the Islamic State, administration officials initially said they weren’t relying on either one. But they have since reversed their position. On Friday, Preston reiterated the administration’s current position: the Islamic State is simply al Qaeda by another name.

Indeed, critics often complain that the administration has kept secret who they consider justified counterterrorism targets. In a response of sorts, Preston gave a list: al Qaeda; the Taliban; other insurgent groups in Afghanistan; AQAP in Yemen; al Qaeda in Somalia and Libya; the Nusrah Front; the Khorasan Group; and the Islamic State, which Preston called “the group we fought in Iraq when it was known as al Qa’ida in Iraq.”

“There are no other groups – other than those publicly identified, as I have just described – against which the U.S. military is currently taking direct action” under the 2001 AUMF, he said.

He also took on the skepticism inspired by the administration’s shift. “ISIL did not spring fully formed from the head of Zeus a year ago, and the group certainly has never laid down its arms in its conflict against the United States,” he said, highlighting ties to Osama bin Laden and al Qaeda.

The formal end of U.S. fighting in Afghanistan, the conflict that prompted the 2001 AUMF, doesn’t end its applicability to today’s counterterrorism efforts, Preston said. “This raises the question: if the President already has the authority needed to take action against ISIL, why is he seeking a new authorization?” Preston said. He said the new AUMF would be forward-thinking, rather than relying on the past.

The new AUMF calls for the repeal of the 2002 AUMF, but it doesn’t address the 2001 AUMF — essentially kicking the can down the road for what the legal framework will look like for counterterrorism operations in the future. Preston himself raised the looming questions revived by the Islamic State about the non-traditional conflict that is the “forever war” on terror, but the answers remain elusive. 

“The U.S. Constitution says nothing directly about how wars are to be ended,” he said. “How, then, are we to know when the armed conflict has come to an end?”