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A Reply to Daphne Eviatar

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Thursday, May 19, 2011 at 12:45 AM

I have a fair bit to say in response to Daphne Eviatar’s comments from earlier today concerning my post about yesterday’s New York Times editorial. Let me start with a brief comment about Daphne’s complaint about the derisive tone of my post.

I hope I come honestly by the frustration that my tone in that piece reflects. The Times has an incredibly important mouthpiece. Its editorials reach countless people every day. Yet in the areas that I write about for Lawfare, it has made–and I have documented on this blog–serial, often-comic errors of fact and law over a long period of time. These errors have not been on arguable points or matters of opinion. The paper has corrected none of them. I have never been contacted by a member of the editorial page staff to discuss the ones I have noted. Nor has the board ever sought to defend the factual accuracy of its statements publicly. The Times combines this cavalier attitude towards facts and law with a relentless stridency in denouncing those who don’t share its views–which, as I have also documented, can be extraordinarily hard to pin down. This is not the way to debate complex and difficult issues. It is a matter of personal sadness to me that the Times editorial page chooses to play the role of incoherent leftist gadfly, rather than to engage hard choices seriously from a liberal perspective. My derision, to put the matter simply, is well earned. Had the Times managed to state its case as honestly as Daphne has gamely stated the paper’s case for it in her post, I trust my tone would have been as respectful as I hope it is towards her argument–to which I will now turn.

Daphne’s first substantive point is one with which I actually agree, though she and I put different spins on it. She notes that even to the extent that Rep. Buck McKeon’s AUMF language codifies the Obama administration’s understanding of the legal parameters of the current conflict, that is not chopped liver but a very significant thing:

as any school-age child can tell you, the executive and the legislature are different branches of the federal government. And it makes a very big difference if Congress pre-authorizes indefinite war against unnamed “associated forces” and supporters of the Taliban and al Qaeda than if the president says, in the context of defending the imprisonment of certain Guantanamo detainees, that it believes it’s authorized to hold them until the cessation of current hostilities.

While I would phrase this point rather differently, Daphne’s point is quite right. It does matter if Congress puts its name behind the president’s understanding of the scope of the conflict and his detention authority within it. Indeed, this is precisely why I think some version of this provision is a salutary thing.

What’s more, I also agree with Daphne that the language may well have the effect over time of lessening the AUMF’s tendency to atrophy with age and distance from September 11. This is true for a simple reason on which I think Daphne and I could probably also agree. A statute that explicitly authorizes X may be reasonably interpretable by a presidential administration to authorize Y, but it may not be reasonably interpretable to authorize Z–though Z might be a perfectly reasonable interpretation of Y. Rewrite that law to authorize Y explicitly, however, and all of a sudden Z becomes a plausible interpretation. I do not exclude the possibility that something like that could happen with the AUMF. Indeed, I would hope it would happen. We have, so far, been able to reason our way from an authorization for military action predicated on the September 11 attacks to something that roughly approximates our current needs. But I worry a lot that we will not be able to continue to do that as the conflict continues to shift and change and Al Qaeda becomes ever more diffuse. Authorize today’s conflict explicitly–that is, write into law the administration’s interpretations of its current authorities–and that may well have the effect of making the interpretive leaps we will need over the coming years easier. This point is precisely why I support the provision in question.

But describing the conflict we are fighting today more precisely in statute is a far cry from the gross expansion of which the Times and Daphne both complain. And Daphne and the Times are not simply complaining that McKeon is making the AUMF more resilient against obsolescence. They are complaining, rather, that it authorizes military force, now and in the future, against people against whom current law does not. And Daphne is specifically objecting to my contention that the McKeon bill largely codifies the administration’s understanding of its current authorities.

Daphne first tries to argue that the administration’s position as to the scope of the conflict, which McKeon would write into law, pertains only to detention and habeas cases–not to the scope of the conflict in general. This is true in the sense that the administration’s articulation of what is colloquially known as the “March 13 definition” took place with reference to detention and in a brief filed in a habeas case. But the proposition that the administration considers the AUMF, as McKeon’s bill reads, as authorizing “an armed conflict with al-Qaeda, the Taliban, and associated forces” is simply not a debatable point. Neither, I think, is it a contestable point that the administration considers the AUMF as authorizing it to use “all necessary and appropriate force” against those groups. Nor, for that matter, is it contestable that the administration considers the AUMF as authorizing the detention of those who are “part of” or “substantially supporting” these groups until the end of hostilities.

Daphne is on stronger ground, in my view, in her anxiety about the specific manner in which two paragraphs in the bill are worded–and in the manner in which the two paragraphs interact. Part (3) of Section 1034 says that the conflict “includes” those who are “part of” or “substantially supporting” the enemy groups. And part (4), as Daphne notes, authorizes the detention of “belligerents, including” members and substantial supporters–but, Daphne worries, not limited to them. This language, she argues, suggests that McKeon means the category of belligerents to sweep more broadly than simply members and substantial supporters of enemy groups. I had not considered this point, and the language is, I suppose, potentially amenable to that reading. That said, it doesn’t seem a likely reading to me. If the language is meant to expand the category of detainable belligerents, after all, it certainly gives no clue as to who other than members and substantial supports might be considered a belligerent. And what’s more, it bears remembering that the AUMF itself is not by its terms even limited that far in its detention authority (it doesn’t mention detention at all). This is a pretty thin reed on which to stake a claim that the language would dramatically expand detention authority. The more likely reading in my view is that the language actually clarifies that detention authority reaches no further than substantial supporters of enemy groups–a detention authority that is arguably narrower than some recent D.C. Circuit interpretations have suggested might be tolerable under the AUMF.

More troublingly, in my view, is a technical problem Daphne doesn’t raise–the possibility that the use of the word “belligerents” to describe substantial supporters might imply that such people are targetable. I doubt very much that this reading is what McKeon has in mind here. But both this problem and the ambiguity Daphne flags are, if they are problems at all, small and easily fixed. They do not amount to anything like a radical expansion of the AUMF detention power.

Finally, Daphne goes out on a limb to defend the Times’ assertion that McKeon’s bill would allow an attack on Iran without further congressional action:

Wittes mocks the New York Times’ suggestion that this would authorize the president to unilaterally go to war against Iran. But this language clearly would do exactly that. If at any time the president determined that Iran was “substantially supporting” or “directly supported” al Qaeda, the Taliban, or any of the unnamed “associated forces” he believes are engaged in hostilities against us, then he would be authorized to use military force against the Iranian government–without any additional approval from Congress.

I am indebted to Daphne here. I have to confess that until I read this passage, I had no idea what the Times editorial writers could have been thinking when they wrote the sentence that I did, indeed, mock. Daphne’s hypothetical fills out the picture a bit. And I actually agree with her that if, at any time, Iran began substantially supporting Al Qaeda, the Taliban, or their associated forces, this bill would seem to authorize the president to use force against the country. But this is not the point that the Times made–even if it was the idea that lay behind it. The Times, rather, simply declared that under McKeon’s language, “If a future administration wanted to attack Iran unilaterally, it could do so without having to consult with Congress.”

It is not especially remarkable, in the scenario Daphne describes, that Congress might consider military force appropriate and authorized. Assuming that the president had reasonably concluded that Iran was directly aiding the enemy in a significant way, that President would have essentially concluded that Iran was intervening in a conflict to which the United States is a party; this is the stuff of which wars are made. Even under the current AUMF, under such circumstances, Iran might plausibly be understood to–depending on the nature of the support in question–be a nation “harboring” the groups responsible for September 11 and thus subject to authorized force. The point is that there are conceivable ways for Iran to intervene in the conflict that might sweep the country within either McKeon’s language or within the AUMF, but any such scenario requires a dramatic change in the relevant facts–not simply an administration that “wanted” to attack Iran. Pakistan seems to have harbored Bin Laden (intentionally or not) and thus is arguably subject to congressionally authorized use of force under the current AUMF. But so what? Any of several countries might some day start harboring Al Qaeda or supporting some associated force of the Taliban’s in a fashion that brings it within either the current AUMF or the McKeon language. That possibility gives me little anxiety about either statute. You can’t write authorizing language for a war based on every possible fact pattern that might develop.