More from John Bellinger

By Benjamin Wittes
Sunday, November 28, 2010, 11:30 PM

Responding to my suggestion that Lawfare readers debate the parameters of a new AUMF--a discussion thread for which I have started over at our Facebook page--John Bellinger III writes in with the following:

I’ve been a bit surprised by the reactions of a few readers of my recent op-ed urging an updating of the AUMF, who seem to view it only as a manifesto for expanded war powers. These readers appear to have overlooked my argument that the AUMF should be revised to provide more process rights for those targeted or detained (or, reflecting the suspicion that has been the hallmark of discussions about counter-terrorism policy, they have dismissed my argument as a sneaky trick to justify an infinite expansion of US authority to wage war).  I've appreciated Ben's and Bobby's efforts to correct the record.  In fact, from the first paragraph to the last paragraph of the op-ed, I argue (as I have consistently for many years) that the U.S. government should provide more procedural protections for those detained under the laws of war.  Of course, I could simply have urged that the AUMF be repealed altogether, that the US cease to target or detain terrorists who threaten us, and that the Defense Department release those currently being detained unless they can be convicted in federal court. But these alternatives are not realistic and have already been rejected by the Obama administration.

Instead, operating on the assumption that both Congress and the President will continue to authorize our military and intelligence agencies to take robust actions (including the use of lethal force in some cases and the continued detention of individuals in other cases) to protect the American people from terrorists trying to attack us, I have argued that the AUMF--which is now ten years old--be updated and clarified.  An important part of this updating should be to specify in statute the rights that detained persons should have to challenge their detention, especially if their initial habeas petitions are denied. Similarly, if the US is going to continue to target U.S. citizens in rare cases, I suggest that a new AUMF might provide procedural protections for these citizens before they are targeted. And to be clear, because I know this is a particular concern for my friends in civil liberties groups,  I believe that only foreign nationals captured outside the United States should be subject to detention under the laws of war (and even then, not in all circumstances, if extradition and criminal trial are reasonably available); individuals arrested or detained inside the United States should be put into the U.S. criminal justice system.

I certainly recognize that revising the AUMF would not be an easy task, and I also agree that there is a significant risk that it might get worse. But in my view, the status quo--relying on a ten-year old statute that does not provide clear legal authority for our military and that provides absolutely no procedural safeguards for individuals targeted for use of lethal force or subject to potentially indefinite detention--is not good government.