In a recent post, Bobby raised the question of what impact, if any, Bin Laden’s death would have on the legal effect of the Authorization for Use of Military Force, or “AUMF.” As I noted in a post earlier today, the killing of Bin Laden does not signify either the end of the conflict with Al Qaeda or the end of the more general post-September 11 struggle against terrorism. Nevertheless, Bin Laden’s death is likely to highlight what was already becoming apparent: the AUMF is an increasingly tenuous legal vehicle for authorizing and regulating the long-term detention of suspected terrorists.
Enacted a week after the September 11 attacks, the AUMF authorized the President to
“use all necessary and appropriate force 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
The thrust of this statute is clear: the President was given the authority to use force against the perpetrators of the September 11 attacks—in particular, the Al Qaeda terrorist organization, headed by Bin Laden—and the forces that were harboring Al Qaeda in Afghanistan—in particular, the Taliban.
In its 2004 Hamdi decision, the Supreme Court interpreted this authorization—persuasively, I think—to include the ability to detain the enemy. In a 2005 article, Jack Goldsmith and I explained at length why it makes sense to construe the AUMF to include detention authority, based not only on the AUMF’s text, but also historical practice, functional considerations, and international norms. We did our best to lay out a framework that would be useful to the courts until Congress provided more legislative guidance. That legislative guidance still has not arrived, and it seems to me that the light of AUMF, which we did our best to amplify six years ago, is starting to grow dim. This is not because of any sort of magical sunset provision hidden in the AUMF’s text, but because the developing law in this area reflects an amalgam of considerations, including considerations that over time demand greater congressional deliberation.
Justice O’Connor’s plurality opinion in Hamdi made clear that the Court was deciding only the authority to detain in connection with traditional combat operations in the Afghanistan theatre. As for the proper length of detention, O’Connor largely avoided the question, although she did refer to the traditional ability under the international laws of war to detain individuals until the “cessation of active hostilities.” She also cautioned, however, that: “If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [that enemy combatants may be detained until the cessation of hostilities] may unravel.”
The D.C. Circuit has since concluded—correctly, in my view—that the detention authority found in Hamdi also applies to members of Al Qaeda, even if they are apprehended outside of the Afghanistan theatre. Among other things, the D.C. Circuit has noted that Congress appears to have implicitly approved of such broader detention authority in the Military Commissions Acts of 2006 and 2009, both of which include members of Al Qaeda in their definitions of the persons who can be subjected to military commission trials—trials that will occur only after the individuals are detained. Of course, the conclusion that the detention authority conferred by the AUMF extends to members of Al Qaeda raises difficult question of how to determine such membership, as well as questions about which non-member “supporters” of Al Qaeda also fall within the detention authority. The federal courts have been attempting to resolve these questions on a case-by-case basis after the Supreme Court’s 2008 decision in Boumediene, in which the Court held that the Guantanamo detainees have a constitutional right to habeas corpus review.
I do not have a significant quarrel with how the law has developed on these points to date. The problem, as I see it, is that it is becoming increasingly strained and artificial to claim that legal authority for long-term detention—especially for what may become for some individuals lifetime detention without any sort of trial—is stemming from the AUMF. The AUMF was enacted almost ten years ago, when what we refer to as “Al Qaeda” was a substantially different organization in terms of both its structure and leadership. The death of Bin Laden further highlights these significant changes. At the time of the AUMF’s enactment, the situation in Afghanistan was also substantially different, with the Taliban operating as the de facto government for much of the country and harboring Bin Laden and his organization. The death of Bin Laden reminds us of how much that situation has changed, and it may also further move the United States towards ultimate disengagement from Afghanistan as an active theatre of combat.
With these changes, along with the passage of time, the “cessation of hostilities” concept that provides a limitation on the detention authority under the law of war paradigm that has been used to detain suspected terrorists has the potential to “unravel,” as Justice O’Connor noted in Hamdi. So far, the D.C. Circuit has declined to address the length of detention issue, suggesting that it is a political question that can only be resolved by Congress and the President. It is fair to say, however, that the D.C. Circuit’s sensibilities about the proper scope of judicial review in the war on terror have not perfectly tracked those of the Supreme Court. Perhaps anticipating that there is still a realistic possibility of judicial scrutiny, the Obama Administration has recently established a process for determining when detainees can be released, see here. The Bush Administration had also established something less elaborate along the same lines, with its Administrative Review Boards.
While it is conceivable that an Executive-controlled model for the length of detention will satisfy the Supreme Court, there are reasons to be skeptical. Most notably, the Bush Administration’s effort to establish such a model for the process of determining who can properly be held in detention, with the Combatant Status Review Tribunals, did not prevent the Court from concluding in Boumediene that the detainees were also entitled to a judicial determination of the question. If the Court has the same inclination to resist an Executive-controlled model for the length of detention—an issue with at least as much of a liberty implication as the initial decision to detain—merely citing back to the AUMF is unlikely to be viewed as satisfactory.
Of course, if Congress does not address the length of detention issue, the Supreme Court may have no choice but to develop its own principles, and it might well refer to the AUMF as a starting point in its analysis. (Anticipating this possibility, Jack and I suggested a way of thinking about the issue in our 2005 article, involving an application of the “cessation of hostilities” concept on an individual level.) But if the Court does so, the Executive may find that the judicial legislation that results is more constraining, and more precedent-setting, than what it might have obtained from Congress.