Detention: Law of: Legislative Development

More on Whether We Need to Refresh Detention Authority

By Robert Chesney
Friday, May 27, 2011, 4:52 PM

Earlier today I noted a couple of scenarios in which the US government might want detention authority yet face obstacles in relying on the original AUMF should we have withdrawn in the interim from Afghanistan, as part of my ongoing dialogue with Deborah.  Scenario 1 is a senior AQ figure, ala KSM.  Scenario 2 is a senior AQAP figure, ala al-Asiri. 

A reader wrote offline to point out that courts probably would be willing to construe the existing AUMF to cover the first scenario.  I certainly agree that they should, and suspect they probably would.  But I have no doubt that many would argue the contrary view, on the theory that the existing AUMF's textual link to the 9/11 attacks makes it an increasingly tenuous foundation for ongoing detention and that an end to most combat operations in Afghanistan would further weaken that connection.  Again, I don't think this is the best reading of the original AUMF.  But if one thinks there should be detention in this scenario, it's reasonable to at least consider eliminating the potential statutory argument against it.

To be sure, section 1034 could be written more precisely to achieve this particular goal, which is fine with me.  And that brings us to a second point raised by the reader in that same message: section 1034 does not sufficiently clearly encompass the AQAP scenario and so is not a great fix for that problem, if it is indeed a problem.  I tend to agree, actually.  I think section 1034 is more clear on the point thant the existing AUMF, but agree that it is not clear enough.  If Congress wants to authorize the use of force against AQAP in particular, then, it should probably say so expressly (though that does not mean that any revised AUMF language should only refer to specifically enumerated groups, for reasons I mentioned yesterday). 

My bottom line: I don't think these arguments for refreshing the AUMF on these points are imperative or highly-pressing, but they are good arguments nonetheless.  The real trick, as another reader mentioned to me this afternoon, is determining whether these potential benefits can be realized in legislation without simultaneously incurring too much in the way of offsetting costs on other dimensions (such as the Buchanan Amendment).

Meanwhile, Deborah has another good response in the course of our ongoing dialogue on this issue. There are three main points in it I want to address briefly.

First, Deborah provides a short summary of the course of US litigation concerning the AUMF's detention authority.  She makes the point that the courts, via habeas litigation, have

read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

I'm not sure I'd agree with that description, or at least I'd put it a slightly different way.  I'd say the courts agree that detention authority extends so al Qaeda and the Taliban, but that (i) the issue of associated forces has not yet come up with enough frequency to shed substantial light on that aspect of the AUMF and (ii) it remains to be seen whether the courts will be comfortable with continued detention once hostilities in Afghanistan wind down (as discussed above, I have my view on how this would impact the AUMF, but others disagree). This, to me, is what the AUMF renewal debate is largely about, or should be about, rather than the idea of extending authority to use force to still-other groups that don't even fall under the headings of AQ, the Taliban, or associated forces.

Second, Deborah responds to my KSM/senior al-Qaeda hypo by arguing (i) KSM ought to be tried not just detained and (ii) other senior AQ figures, even if not triable, surely would remain within the scope of the original AUMF.  Well, I'm all for trying KSM (and for the record am strongly opposed to the Buchanan Amendment), and as I state above I think the AUMF should continue to supply detention authority as to other senior AQ figures--but others disagree, and so I am making the point that one reason to favor refreshing the AUMF so as to ensure this interpretation.

Third, Deborah responds to my AQAP/al-Asiri hypo by asking why we would want to tie an authorization against AQAP to the original AQ authorization:

Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. I’m going to use exaggerated language here, but it’s in service of trying to clarify the point: “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

My first reaction is that the existing AUMF already is best read to encompass multiple groups (al Qaeda, the Taliban, and associated forces), and the idea of making it do so in more explicit terms is therefore not a change on this dimension.  My second reaction to the quoted language is that it sets up a bit of a straw man insofar as it imagines a revised AUMF that reached not just "associated forces engaged in hostilities against the United States and its coalition partners" (see here for my criticism of existing language in section 1034 that does not specific "engaged in hostilities") but also "ideologically-aligned groups."  I certainly don't support use of an ideological affinity test for defining the scope of authorized force, and am not sure that anyone in Congress is attempting to go down that road.  It would be a huge mistake, for all the reasons Deborah mentions in her post.