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The world after bin Laden—A Commentary by Bruce Ackerman ’67 and Oona Hathaway ’97

The following commentary was posted on washingtonpost.com on May 3, 2011.

The world after bin Laden
By Bruce Ackerman ’67 and Oona Hathaway ’97

Professors of law at Yale University

The basis of our war in Afghanistan and elsewhere has been Congress’s decision, seven days after Sept. 11, 2001, to authorize force against those who “planned, authorized, committed, or aided the terrorist attacks” and those who harbored them. This was intended to destroy al-Qaeda and deprive it of sanctuaries in Afghanistan.

Osama bin Laden’s death puts paid to the war authorized by this resolution. Even before his death, the original rationale provided only tenuous support for military operations in Afghanistan. Indeed, CIA director Leon Panetta publicly said months ago that there were only 50 to 100 members of al Qaeda in the entire country. Would the resolution continue to apply even if only one al-Qaeda fighter remained?

The resolution also includes those who harbored the attackers. In 2001, this surely included Afghanistan’s Taliban government. But Afghanistan has a different government and constitution now. We are helping President Hamid Karzai fight a variety of insurgents, but it’s a big stretch to say they are all part of the entity that “planned, authorized, committed, or aided” the Sept. 11 attacks or harbored those who did. Is this really the basis of our continuing war in the region?

If the answer is yes, it raises a deeper question: whether we still have a constitutional system of checks and balances on big decisions over war and peace. To his credit, President Obama has not claimed, as Bush administration officials did, that the Constitution gives the president exclusive power over warmaking. He has relied on increasingly strained readings of the 2001 resolution. But with bin Laden’s death, this strategy has degenerated into sheer legal fiction. If Obama’s continuation of the war under radically changed circumstances goes unchallenged, it will transform a limited congressional mandate into a magic wand authorizing a never-ending and worldwide conflict in response to a constantly changing threat.

Now is the time for President Obama to declare victory over those responsible for the Sept. 11 attacks and return to Congress for a new resolution defining the extent and limits of our military operations as we enter a second decade in the struggle against terrorism.