Is Al Qaeda Winning: Grading the Administration’s Counterterrorism Policies

Testimony before the House Foreign Affairs Subcommittee on Terrorism, Non-Proliferation, and Trade

Broadcast live streaming video on Ustream

Thank you, Chairman Poe, Ranking Member Sherman, and members of the subcommittee for inviting me to present my views on the future of the Authorization for the Use of Military Force (AUMF) and intelligence collection under Section 702 of the FISA Amendments Acts (FAA). I am a Senior Fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author or editor of several books on subjects related to law and national security: Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). I have written extensively both on the AUMF and on NSA collection under various provisions of the Foreign Intelligence Surveillance Act (FISA). The views I am expressing here are my own.

The topics of the vitality and adequacy of the AUMF for the conflict the United States is currently fighting and the NSA surveillance programs that have, of late, dominated news headlines may seem largely unconnected. The AUMF and the FAA, after all, are profoundly different legal authorities, passed at different times, and with different fundamental purposes—one to authorize the conflict with Al Qaeda and the Taliban in response to the September 11 attacks, the other to gather foreign intelligence both inside and outside of the context of that armed conflict.

Yet in considering the question of the state of the U.S. confrontation with Al Qaeda, there is something to be said for considering these questions in conjunction with one another. These are, after all, two of the most important legal instruments in the struggle this committee is endeavoring to assess. One is the key legal authority for virtually every military action the United States undertakes in its military battle against Al Qaeda, its offshoots, and its affiliates. The other is the single most important legal authority the intelligence community has for collecting intelligence against the Al Qaeda target—not to mention other foreign targets of great national security significance. This intelligence is key to arrests and the thwarting of terrorist plots against the United States and its allies. It is also key to accurate and precise targeting judgments in lethal force operations.

What’s more, both laws, for very different reasons, are under considerable stress right now. President Obama has announced that he wants to end the AUMF conflict, raising profound questions both about the plausibility and timeframe of that objective and about what legal instrument—if any—will replace the AUMF. Meanwhile, serial leaks have generated enormous political anxiety about NSA programs and persistent calls for reform in the press, in the general public, among allies, and in this body. Section 702 will sunset in 2017 absent action by Congress to renew this important collection authority. So major pillars of the legal architecture of America’s conflict with Al Qaeda have been placed—in different ways and for very different reasons—on the table. This body thus cannot avoid the question of how much, if at all, it wants to alter the most fundamental architecture of the conflict.

In my view, as I will lay out, the critical task facing the Congress is different with respect to these two laws. With respect to the AUMF, the Congress should legislate to clearly authorize, and establish proper oversight of, the conflict the United States is likely to continue fighting after its withdrawal from Afghanistan. With respect to Section 702, the task is simpler: to maintain the intelligence community’s capacity to support both the broad national security objectives of the United States and the conflict’s prosecution under whatever legal authorities may succeed the AUMF.

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