AUMF: Legislative Reaffirmation

Daphne Eviatar Defends the New York Times

By Benjamin Wittes
Wednesday, May 18, 2011, 6:39 PM

Daphne Eviatar of Human Rights First sent in the following in response to my post from yesterday contrasting the New York Times editorial and the Washington Post editorial on Buck McKeon's AUMF proposal. I will respond to Eviatar's comments this evening but wanted to share them with readers as quickly as possible:

Jumping into the editorial fray over the proposed new Authorization for Use of Military Force, part of the National Defense Authorization Act now being debated in Congress, Benjamin Wittes takes the opportunity in his post today to slam the New York Times for disagreeing with him. But calling the Times “shrill” and “ill-informed” is simply a way of deflecting attention from the words of the proposed legislation itself.

Name-calling isn’t necessary here.  I don’t believe that either the Post or Wittes intend to be misleading or are hopelessly ignorant, as Wittes makes the New York Times editorial board out to be.  But I do think that both (assuming they can be seen as separate, given that Wittes used to be on the Post’s editorial board) are failing to step back and look at the larger picture.

Indeed, Wittes acknowledges in the very beginning of his post that Buck McKeon, in proposing his amendments to the NDAA, is attempting “to rewrite the AUMF”--not simply to re-state it, as he later goes on to argue.

While there is some language in his proposed AUMF that repeats the language used by the Obama administration in the context of Guantanamo litigation, the full language is decidedly--and one must assume deliberately--not identical.  Moreover, 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.

Let me explain.

The Authorization for the Use of Military Force enacted by Congress in 2001 allowed the U.S. military to wage war against "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. . ."

Based on that, the Obama administration has, in the context of Guantanamo detainee litigation, argued that it is authorized to detain insurgents who “were part of, or substantially supported Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.”

The McKeon legislation would do several things.  First, it would divorce the so-called “war on terror” from the September 11 attacks completely, and it would allow the president to continue that war, regardless of when or why it started, and regardless of where it believes it is continuing, into the indefinite future.

The bill does so by stating that: “the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.”

Moreover, it states not only that the president has the power to detain members of the Taliban, al Qaeda and associated forces in connection with the war initiated by the September 11 attacks, as the Obama administration has said, but it more broadly authorizes the use of military force against “nations, organizations, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or


(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A)”

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.

Once again, Wittes is here using a derisive tone to deflect attention from the truth of what this legislation says and does.

Wittes argues that the McKeon legislation “is doing little more than enshrining the administration’s understanding of the AUMF.”  Yet even setting aside the distinction between detention authority pursuant to an existing war and authority to use military force, it’s clear by its own terms that the McKeon bill intends to expand even current detention authority.

The bill states:

“the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including [but not limited to] persons described in paragraph (3), until the termination of hostilities.”

Clearly, McKeon is contemplating some detainees other than those already described by the Obama administration.

This makes perfect sense.  If McKeon were merely reiterating the current authorization for military force, then he wouldn’t bother proposing a new one.  The only purpose to proposing a new one is to expand the existing war beyond its current breadth, beyond a war against the groups and individuals related to the September 11 attacks, but to create an indefinite "war" on terrorism more broadly--wherever it is found and regardless of how the president chooses to define "terrorism” and “hostilities” against the United States.

Indeed, McKeon has made clear that he thinks the war should be broader than it is today.  As he said recently: "the threats posed by al Qaeda cells in Yemen and Africa underscore the evolving and continuing nature of the terrorist threat to the United States."

What he did not say, but what this legislation would also do, is authorize the use of military force against suspected al Qaeda, Taliban or “associated forces” here in the United States as well.  This is hardly a mere reiteration of the Obama Administration’s current authority, as Wittes and the Washington Post would have us believe.