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Further Tightening the Proposed AUMF Language, and Responding to Additional Objections

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Thursday, May 26, 2011 at 12:20 PM

I’m in the midst of grading exams for my National Security Law class, and keep finding myself thinking that I should have assigned the draft AUMF language in the NDAA FY12 bill as the basis for an essay question (check out the syllabus, slides, and readings here if you are curious what my version of that class looks like, and feel free to contact me with suggestions for things you think should or should not be there).  Indeed, Ben’s post below, in which he ponders how one might tweak the language of the bill to address some of the concerns critics have raised, would make for a particularly good question, as would Deborah Pearlstein’s post setting forth her reasons for objecting to the AUMF draft.  I have a few quick thoughts in response to each.

Amending Ben’s Tweak of the Draft AUMF Language

Ben’s proposed change to the AUMF language is a big improvement on the original. His language is much tighter, much less susceptible to the argument that it subtly or even accidentally extends authority to use military force against individuals, states, or groups that (i) are not al Qaeda, the (Afghan) Taliban, or associated-forces-actually-engaged-in-hostilities-against-the-US-or-its-coalition-partners but (ii) do have some connection–possibly relatively indirect or tenuous–to such groups.  As I noted previously, this is one of the two areas that I think should be refined, and in a general sense I like how Ben has done just that (including the use of a “harboring” test rather than a support test, though I would not limit harboring to “nations” but instead would specify non-state actors as well).  

The other area of concern I raised had to do with the question of how best to illuminate–and cabin–the scope of the “associated forces” concept.  I think the underlying goal here should be to make clear that the domestic legal foundation for using military force  is not limited to al Qaeda and the Taliban but also extends to the many distinct entities that are in fact engaging in hostilities against the United States and its coalition partners.  To be sure, if we begin from the premise that a particular group other than AQ or the Taliban is engaging in hostilities against the United States in particular, one can certainly mount an Article II argument for using force in response notwithstanding the lack of clear statutory authority.   But can the same thing be said if we suppose that the group in question has not directly engaged US forces, but instead is attacking Afghan or non-US ISAF forces?  There may be no group that fits this description, of course, but let’s assume that there is.  In that case the Article II argument could still be advanced, but it would be less persuasive relatively speaking.  In both scenarios, in any event, it is better for Congress to put its authority behind the government rather than leave it to government to rely on Article II claims.  In light of all this, perhaps it would be good to amend Ben’s proposed language so that every reference to “associated forces” becomes “associated forces that are engaged in hostilities against the United States or its coalition partners.” 

Addressing Deborah’s Concerns

Deborah expresses three sets of concerns about the AUMF draft.  Her points are characteristically thoughtful and interesting, and I set them forth below along with a few responses:

(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?

I’m not persuaded by the idea that there is an implicit time-constraint in the 9/18/01 AUMF, at least not one that stands alone rather than acting as a function of factual change in the nature of and threat posed by al Qaeda.  To be sure, the more that the evolving threat of terrorism evolves away from an entity that can plausibly be described as the “al Qaeda” that perpetrated the 9/11 attack (and the 2000 attack on the USS Cole, and the 1998 East African Embassy Bombings, etc.), the more attenuated the connection to the 9/18/01 AUMF becomes.  In that sense, I certainly agree that the 2001 Congress might be surprised to see its handiwork cited for detention of Somali fighters in 2021 (here I’m assuming that these hypothetical Somalis are not plausibly described as part-and-parcel of al Qaeda…but who knows what the case might be a decade hence).  But let’s assume for the sake of argument that Zawahari, Saif al-Adel, and the rest of “core” al Qaeda are still operating and plotting in much the same way in 2021.  I think the original AUMF should still be construed to apply to them.  

All that said, it seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda.  From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing.  I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death. 

(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.

I don’t see much risk here of convulsing the habeas litigation by moving the goal posts as to who may be detained.  The AUMF provision does not say much on this score that is not already argued by the executive branch and that is not already largely accepted by the habeas judges.  It would be different, perhaps, if the legislation actually attempted to flesh out what is meant by saying someone is “part of” or “supports” an AUMF-covered group, but for better or worse it does not attempt this–and hence does not purport to be a cure-all for interpretive uncertainty.

(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.

Here Deborah and I have similar concerns, as noted above and in my earlier post on the “associated forces” issue.  That said, I don’t think it adequate for the legislation to just name the particular groups in question (e.g., dropping “associated forces” in favor of an enumeration that would specify, among others, the Haqqani Network, Tehrik-i-Taliban, etc.).  The expression in legislation of a finite list for the express purpose of imposing a discernible limit as to which groups may be made the objects of military force presumably would be construed to prohibit attacks on other, unnemerated groups who were ommited originally only because of inadequate intelligence, changing names, or changing behaviors.  Sure, the executive branch could then race back to Congress to ask for an expansion, but (i) time would be lost, (ii) the chance to act with the advantage of surprise might be lost, and (iii) diplomatic or intelligence considerations might come into play in a problematic way.  To all of that, one might say that in such circumstances the executive branch could, in appropriate cases, fall back on its Article II powers.  Probably so, but it then arguably be doing so at the “lowest ebb,” facing a Little v. Bareme style objection that it is acting contrary to Congressional intent.  To that, one might respond that Congress could include a catch-all term indicating that the enumeration is not meant to preclude the executive branch from using force againt entities actually attacking US forces, for example.  But that would just bring us back to square one, as my preference here is to rely on some variation of an associated-forces-actually-engaged-in-hostilities test.

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