Detention: Law of

An Easy Fix for the AUMF Language?

By Benjamin Wittes
Wednesday, May 25, 2011, 11:36 PM

Ever since my exchange with Daphne Eviatar and Bobby's post last night, I have been wondering if there's an easy tweak to Rep. Buck McKeon's AUMF reaffirmation language. Specifically, could Rep. McKeon make his bill more clearly an affirmation of the administration's current interpretation of the AUMF, rather than the expansion of the AUMF that people believe it to be? I'm not sure there's a real problem here, but to the extent that there is, I think it's easily fixed--and offer the following as a possible solution.

Let us start with a basic assumption that some people (like me) will believe to be true and some will be gracious enough to accept for purposes of argument. Let's assume that McKeon is not trying to expand the war on terror, merely, as he has said, to enshrine the executive branch's interpretation of the current AUMF in law. The House Armed Services Committee said this explicitly in the report accompanying the chairman's mark (see p. 18):

The committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13, 2009, interpretation remains consistent with the authorities provided by Congress.

So if only in a suspension of disbelief, let's take the committee at its word about its intent. I am not especially anxious about the language the committee used to effectuate this intent. But the specific language does make some people--including the White House--worry that it is doing more than it apparently means to. The committee's language reads as follows:

Congress affirms that—

(1) 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;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, 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); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The problem arises in paragraphs (3) and (4). Paragraph (3) says that the current conflict "includes nations, organization, and persons" who are "part of, or substantially supporting," the enemy--thus arguably seeming to suggest that Congress has authorized the use of "all necessary and appropriate force" against mere supporters of our enemies. Interpreted this way, the language would arguably go beyond the administration's understanding the current AUMF in a couple of ways. First, it would authorize force against nations who might give non-trivial support to, say, the Taliban--say, against Iran. Second, it would authorize force against groups and individuals for independent support of the enemy. While the administration has reserved the right to detain such people, I'm not sure it would generally claim the authority to target mere supporters--even substantial supporters.

Paragraph (4) arguably compounds this problem by labeling the people described in paragraph (3), including supporters, as "belligerents"--a word that strongly implies that they are legitimate targets.

While I don't think it is necessary to read McKeon's language as authorizing force against mere supporters, a reading that places a great deal of weight on the word "includes," it is not a ridiculous reading either. So if the goal is really to enshrine, rather than expand, the administration's current understanding of its authority, the language should probably be tightened to clarify two points: that "part of, or substantially supporting," is the standard for detention, not targeting, and that "all necessary and appropriate force" is authorized against enemy groups and those nations that--in the language of the original AUMF--harbor, not merely support, them. Here is how I would be tempted to tweak McKeon's language:

Congress affirms that—

(1) 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;

(2) the President has the authority to use all necessary and appropriate force against al-Qaeda, the Taliban, and associated forces and against those nations that harbor al-Qaeda, the Taliban, or associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note); and

(3) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain until the termination of hostilities 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 an organization or person described in subparagraph (A).

I would be interested in reader reaction to this language. In particular, I would be very interested to hear from Daphne about whether these tweaks would address her concerns about the McKeon language expanding the AUMF--and whether she thinks this language would, in material respects, do more than merely codify the administration's current understanding of its authorities.