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Monday, May 16, 2011

Is the AUMF Broke? (And If Not, Why Fix It?)

There's been a lot of discussion over the past few weeks in D.C. about the "Chairman's Markup" to the National Defense Authorization Act, especially the provisions that would "reaffirm" the conflict that Congress initially authorized in the September 18, 2001 Authorization for Use of Military Force (AUMF)--i.e., the use of military force against those groups that were responsible for the September 11 attacks.

What is surprising to me about the current debate is just how little detail one hears from supporters of the "new" AUMF for why it is a necessary piece of legislation, and for what authority the new legislation would provide that the existing statute does not. To my knowledge, the Obama Administration has not publicly suggested that it needs any additional authority from Congress in the context of ongoing military counterterrorism operations, and for better or worse, the case law coming out of the D.C. Circuit supports a fairly expansive interpretation of at least the detention authority provided by the 2001 statute, largely vitiating any argument that broader detention authority is the justification for the new bill. So if it's not about detention, and if the Administration doesn't think it's necessary, what gives? 

The irony is that it's folks like yours truly who are discontent with the status quo, in large part because I don't think the AUMF can fairly be read to sweep as broadly as the D.C. Circuit has held that it does. But are there those who think the D.C. Circuit is largely getting these issues right who still think we need a new statute? If so, why? That, to me, is the key question here, and I continue to be floored by just how little supporters of the new bill have addressed it...

Posted by Steve Vladeck on May 16, 2011 at 04:03 PM in Current Affairs, Steve Vladeck | Permalink

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More here (May 10).

Posted by: Joe | May 17, 2011 8:04:21 PM

Avoiding the "beg the question" construct, I don't support that sort of thing as a matter of policy. But, if Congress does, seconding what Howard Gilbert says at 11:51 as to the need for details, a new AUMF would place things on firmer ground. As to who it covered, the original 2001 AUMF text seems more open-ended than that.

Some remarks on the matter in the link below; it is not meant to imply I agree with all that is said. I probably don't.

http://www.lawfareblog.com/2011/05/mckeon-ii-a-quick-and-dirty-analysis/

Posted by: Joe | May 17, 2011 8:00:58 PM

Surely that merely begs the question? I don't see how it answers the issue raised in the title of this post.

Posted by: M | May 17, 2011 5:04:36 PM

Steve: The AUMF made sense as a temporary authorization made while the buildings were still burning. It should have been replaced a few months later with a more specific and detailed authorization. By what dysfunctional theory of government should we run a war for 10 years on a few lines Congress worked out on the back of an envelope, while regular legislation comes thousands of pages long filled with earmarks for pork barrel projects. Is it reasonable that Congress spent more time debating whether Terri Schiavo had a right to die than it spent considering the basis for our current armed conflict? At some point we should move out of our legislative "FEMA Trailer" and into something permanent.

Posted by: Howard Gilbert | May 17, 2011 11:51:35 AM

Howard -- Does anyone seriously dispute that the AUMF applies to al Qaeda and the Taliban? Indeed, much of the controversy surrounding the new language is the inclusion of "associated forces," a term no more clearly defined (and in my view far less defined) than the subject of military force under the original AUMF. So if that is indeed a flaw in the AUMF (and I disagree that it is), it's only compounded by the new bill.

And Joe, this begs the question for me. Does Congress think we need to be at war with every multinational terrorist organization in the world regardless of their disposition toward the United States, or just those who were responsible for 9/11? If it's the former, why not let Congress say so--as opposed to stealthily expanding the scope of the AUMF to so provide... I very much doubt that, if that were the justification for a new AUMF, it would be widely supported.

Posted by: Steve Vladeck | May 17, 2011 10:18:48 AM

Steve, "illegitimate" seems to be used narrowly here. There are people who think there is a constitutional or statutory requirement that the DC Circuit is not properly applying, so that would be "illegitimate" in my eyes on some level. You say you think it is "wrong." Okay. A new AUMF would seem to me to put it on "firmer ground."

Also, some in Congress and elsewhere have suggested that events on the ground has changed to make the AUMF 2001 out of date. This includes that the "grave threat" that was immediately in place in 2001 has changed, including given the defeat of the Taliban government in Afghanistan. Howard also notes that we now can fill in some more details on exactly who we are fighting.

Posted by: Joe | May 17, 2011 6:52:44 AM

The AUMF authorized the use of armed force, but at the time Congress did not know against whom. The President was authorized to determine who were the people, organizations, and countries responsible for the 9/11 attack and then to use military force against them.

It would seem reasonable, and perhaps be long overdue, for Congress to acknowledge the President's determination that it was the Taliban and Al Qaeda who were responsible, and for Congress to endorse that finding. After all, in the proper exercise of its War Powers, it seems incumbent on Congress to explicitly name the enemy. The previous "blank check" declaration of war seemed a bit sloppy. "We are at war with someone, and the President should fill in who it is we are at war with when he figures it out."

Posted by: Howard Gilbert | May 17, 2011 12:33:32 AM

Joe -- That presupposes that there are folks arguing that the D.C. Circuit's current jurisprudence is illegitimate. I think much of it is wrong, but not illegitimate. Quite to the contrary. So by that logic, the new AUMF is necessary to confirm that they're right, even though nothing else could meaningfully undermine their jurisprudence?

And Lee, at least so far, the D.C. Circuit has rejected any argument that the authority conferred by the AUMF wanes over time, including by rejecting the notion that current/future dangerousness is relevant to whether a detainee is subject to detention under the statute. Nor is the D.C. Circuit out on a limb here; the Supreme Court's jurisprudence regarding when wars "end" suggests that that's entirely up to the political branches. So again, I just don't see what the current statute doesn't provide, at least as currently interpreted...

Posted by: Steve Vladeck | May 17, 2011 12:01:37 AM

Steve, can't a lot of the statutory authority be read as terminating below some threshold of intensity of the war on al qaeda? Or below the threshold of some other benchmark that supporters of the legislation think needs to be lowered in order to secure authority that lasts longer?

Posted by: kovarsky | May 16, 2011 6:52:19 PM

A clear statement from Congress that the judges who support the most expansive application are loyal to congressional intent would give the result firmer legitimacy.

Posted by: Joe | May 16, 2011 5:41:39 PM

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