The Legal Underpinning of War Since 9/11

The anniversary of the 9/11 attacks marks nearly 16 years since passage of the law authorizing the president of the United States to wage a military campaign against terrorism.

Though members of Congress from both parties—citing the power to declare war that the Constitution vests in the legislative branch—have called for updating the legal underpinnings of the conflict, overhauling the war authorization seems unlikely in the current political climate, says Matthew Waxman, the Liviu Librescu Professor of Law and faculty chair of the Law School’s Program on National Security Law.

Waxman served in senior positions at the State Department, the Defense Department, and the National Security Council during the Bush administration. His research and writing examine the foundations of wartime powers and debates about them that continue to the present.

In the Q&A that follows, Waxman discusses the legal context for the war on terror as it stands currently.

This interview was lightly edited for space and clarity.

Q: What responsibility does Congress have here?

Waxman: Congress passed a very broad authorization for the use of military force just days after the 9/11 attacks that remains the most consequential congressional action in this war to date. There have been many calls on Congress, including from some influential members, to update that authorization, especially to take account of the Islamic State group. In principle, that’s the right thing for Congress to do, but in the current political climate, I don't think it’s likely that Congress would take on more political risk than it needs to or would come up with an output that puts the war on a much more sensible legal footing. Instead, we’re likely to see Congress continue to use its spending powers to implicitly support the war, and to use its oversight powers to influence it around the margins.

You have argued that Charles Evans Hughes (Class of 1884), who contended that “the power to wage war is the power to wage war successfully,” anticipated debates over constitutional war powers that continue to this day. How does that principle endure?

Hughes first said this at the height of World War I, in a very different context and with an emphasis on Congress’s war-waging powers, but his main point was that the Constitution adapts flexibly to the changing needs of warfare and national defense. Two of the big questions pervading American legal debates since 9/11 have been how much flexibility is needed, especially when balanced against the risks to rights, and for how long should that flexibility extend when the war against al-Qaida and spin-off groups seems likely to go on indefinitely.

On Sept. 11, 2001, you huddled with senior officials in a secure bunker beneath the White House as the attacks unfolded. What stands out for you on this anniversary of the attacks?

A lot went wrong with our intelligence system, but a reality of national security decision-making is that even with the best intelligence capabilities in the world, policymakers necessarily operate with some big uncertainties and blind spots. A related challenge for government is how to prepare for low-probability but high-impact events, like major terrorist attacks. It’s difficult to know how much to invest in preparation and to assess whether preventive measures are working. Also, a big part of national security policy is setting up effective organizational structures and bureaucratic systems. Much as after World War II our government was dramatically reorganized to handle new global security responsibilities, since 9/11 it has been reorganized to deal with new threats like transnational terrorism and new capabilities like cyber-operations. Some big examples have included creation of the Department of Homeland Security and the director of national intelligence, and the current administration is weighing options for restructuring government agencies responsible for engaging in and defending against cyber attacks.

Further reading

Charles Evans Hughes and Constitutional War Powers

The Power to Wage War is the Power to Wage War Successfully: A Centennial Essay (Lawfare)

The Power to Wage War Successfully (Columbia Law Review)

Prof. Matthew Waxman Testifies About Cyber Strategy Before Senate

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Posted on September 7, 2017