Within one week of the terrorist attacks on September 11, 2001, the United States Congress authorized the President to hunt down those responsible. Through the Authorization for the Use of Military Force (AUMF), Congress granted the President the power to mobilize the military and destroy the terrorist organizations that planned and carried out the attack. The result: the “War on Terror”—a military engagement lasting almost two decades and three presidential administrations.
In response to critics of the war’s longevity, the Executive Branch has flashed its ace in the hole: “co-belligerency,” a theory stemming from the international laws of war that the Executive Branch relies upon to justify continued military action. Critical of such reliance, Boston University School of Law Professor Rebecca Ingber challenges the validity of the theory itself. In a fascinating and thought-provoking article in 2017, she argues that co-belligerency is not as well established under the international laws of war as the Executive Branch believes. She thus calls on the academic community to investigate whether alternative norms of international law may better apply to the AUMF.
This Note responds to Professor Ingber’s piece by suggesting that before engaging in her analysis, we must first ask whether it is even appropriate to rely upon any international law to determine the scope of Presidential authority in the War on Terror. Through an analysis of Judge Brett Kavanaugh’s concurring opinion in Al-Bihani v. Obama, this Note asserts that international law may only influence Presidential wartime authority when Congress has explicitly incorporated it into domestic law.
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