Detention & Guantanamo

The Nuanced Position of Representatives Berman and Smith on AUMF Renewal

By Robert Chesney
Friday, May 27, 2011, 9:42 AM

As Raffaela notes below, the NDAA FY12 passed the House yesterday with the AUMF provision, section 1034, intact.  The action now moves on the Senate, and beyond that we have the prospect of negotiations in conference and, of course, the possible veto threat.  So we've hardly heard the last of this topic.  And since that is the case, let's turn now to an interesting development that emerged during yesterday's debate.

Yesterday during the House debate, Representatives Howard Berman and Adam Smith (the ranking members of, respectively, the Foreign Affairs and Armed Services committees) circulated this Dear Colleague letter summarizing their objections to section 1034 and urging an affirmative vote on the amendment that would have stripped it from the NDAA FY 12.  The letter is very important, I think, insofar as it reveals how much common ground lurks beneath the surface of this debate (or perhaps more accurately, how likely it is that opponents of section 1034 differ widely in the nature and extent of their objections to section 1034). 

The key passage is in the third paragraph, where Representatives Berman and Smith state that they agree that

after 10 years the AUMF should be updated, both to incorporate groups that did not exist at the time of 9/11 (e.g., Al Qaeda in the Arabian Peninsula) and to authorize the President to detain individuals.

Put simply, they agree that it is a good idea to more clearly incorporate entities such as AQAP.  That said, they oppose the particular approach taken in section 1034 because, among other reasons, they read it as doing more than that:

Yet section 1034 would unnecessarily expand the scope of the President's authority.  It could authorize the targeting of nations, groups or even individuals with merely a loose connection to al Qaida or the Taliban.  Most troubling, it authorizes detention 'until the end of hostilities,' a dangerously undefined period.

Comparing that criticism with the prior paragraph's argument that AQAP should be embraced, it looks to me as if the concern here is with section 1034's extension of authority to groups that do not themselves constitute al Qaeda, the Taliban, or associated forces, but who do provide support to such entities.  Ben proposed yesterday to address this scenario by substituting a harboring concept for the support concept (a suggestion that I replied to, favorably, here), and I wonder if that might not suffice to address this concern in this Dear Colleague letter as well.