Detention: Law of

Two Editorials, Two Different Worlds

By Benjamin Wittes
Tuesday, May 17, 2011, 11:00 PM

Anyone who wants to understand in a nutshell the difference between the New York Times editorial board and the Washington Post editorial board on counter-terrorism issues--and, actually, on a broader array of issues too--need look no further than two papers' respective offerings concerning Buck McKeon's efforts to rewrite the AUMF. The Times editorial is shrill and ill-informed, contains several gross factual errors and misleading statements, and--apparently without any awareness of what it is doing--suggests that the Obama administration believes it has the power to attack Iran under the AUMF. The Post editorial, by contrast, is careful and measured, alternately praises and criticizes McKeon's efforts, and gives readers a useful lens through which to understand a difficult subject.

Let's start with the Post. (Disclosure: I used to work for the Post editorial page and am very attached to my former colleagues.) The body of the editorial notes with appropriate bewilderment the "surprising opposition" McKeon's proposal concerning the AUMF has generated:

A score of liberal interest groups, including the American Civil Liberties Union and MoveOn.org, sent a letter to lawmakers to express concern that the provision could appear “to be stating that the United States is at war wherever terrorism suspects reside.”

We have one question: Where have they been for the past 10 years?

The United States has in fact been involved — as they ominously put it — in a “worldwide war” against terrorist groups intent on doing harm to the country, its allies and its interests. Two presidents from opposing parties have made clear that the United States would not stand idly by when other countries are unwilling or unable to ferret out the terrorists among them. The presidents were bolstered in their conclusions by the original Authorization for Use of Military Force (AUMF) and by international law, which recognizes a country’s inherent right to self-defense. The recent raid that resulted in the death of Osama bin Laden was a product of such an approach.

Yet a growing chorus of critics questions the legality of such operations against al-Qaeda and its cohorts, in part because 10 years have passed since the Sept. 11, 2001, strikes that gave rise to the original AUMF. Some point to Osama bin Laden’s death as further weakening the president’s authority to act under the AUMF. This is why a new reauthorization is necessary. The provision could be made to sunset after three to five years to address concerns that it is too open-ended; renewal would be subject to congressional approval.

The editorial goes on to criticize other provisions of McKeon's bill, as I have done. These, it complains, "trample[] on the president’s prerogatives and skimp[] on legal protections for detainees." But, the editorial concludes, "Congress should back the president’s lawful efforts to continue to battle terrorism and detain enemy combatants by endorsing a new AUMF."

Now one can agree or disagree with the Post's analysis both of McKeon's AUMF provision and with his bill's other ideas. (I happen to broadly agree with the Post both that the AUMF provision is salutary and that some of the others have big problems and still need work.) But one cannot reasonably accuse the editorial of being factually false. It states a coherent opinion. And, in a small virtue, it doesn't accidentally declare war on Iran.

Let's contrast that for a moment with the Times's editorial, the factual problems with which begin in the first sentence: "Osama bin Laden had been dead only a few days when House Republicans began their efforts to expand, rather than contract, the war on terror." Now at a pedestrian level, this is rather unfair to McKeon. Had the Times editorial writers been reading Lawfare, they would have known that this provision is essentially unchanged from a version that considerably predates Bin Laden's death. More importantly, the idea that McKeon's language expands the war on terror is not really an accurate statement either--as the Post editorial explains. In fact, the McKeon language largely codifies the Obama administration's view of its authority under existing law. That is, the McKeon language would update the statutory law to match, broadly speaking,  the administration's extant interpretations of its existing statutory authorities. With one arguable exception that I think is likely an accident, the McKeon language doesn't clearly authorize military attacks on anyone the administration doesn't already claim the authority to target.

The Times then compounds this error in the next two sentences with a second major mistake:

Not content with the president’s wide-ranging powers to pursue the archcriminals of Sept. 11, 2001, Republicans want to authorize the military to pursue virtually anyone suspected of terrorism, anywhere on earth, from now to the end of time. This wildly expansive authorization would, in essence, make the war on terror a permanent and limitless aspect of life on earth, along with its huge potential for abuse.

Notice how this passage injects a temporal and geographic element to the alleged expansion of the war--the idea that McKeon's language would make the war permanent and worldwide. It does nothing of the kind. Indeed, it is no more or less temporally or geographically bound than was the original AUMF, which contained neither a geographic nor a temporal limitation. Neither the last administration nor this one saw the conflict under the AUMF as limited to a particular place or subject to some timer that would some day go buzz and end the authority to wage war. Again, McKeon's bill would change little on that score.

The editorial then goes on to state its core case against McKeon's bill:

It would allow military attacks against not just Al Qaeda and the Taliban but also any “associated forces that are engaged in hostilities against the United States.” That deliberately vague phrase could include anyone who doesn’t like America, even if they are not connected in any way with the 2001 attacks. It could even apply to domestic threats.

I doubt very much that not liking America amounts to being "engaged in hostilities," but I don't begrudge the Times its little hyperbole. I do begrudge the Times the failure in this passage to even mention that the dreaded "associated forces" language tracks exactly the authority the administration already claims under the AUMF. Is it too much to ask the Times to even mention, in the course of railing at McKeon for his radical departure from the AUMF, that his language does not materially depart from the administration's understanding of that document?

The editorial does the exact same thing in the next paragraph:

It allows the president to detain “belligerents” until the “termination of hostilities,” presumably at a camp like the one in Guantánamo Bay, Cuba. Since it does not give a plausible scenario of how those hostilities could be considered over, it raises the possibility of endless detention for anyone who gets on the wrong side of a future administration.

Again, McKeon here is doing little more than enshrining the administration's understanding of the AUMF. Indeed, his language is nearly verbatim the position the Obama administration has taken in court papers. The editorial makes a passing nod at this point in parentheses a few sentences later, saying that "unfortunately, the administration has used a similar definition of the enemy in legal papers." But I don't think the naive reader would have any idea that the law McKeon is proposing would affect hardly a whit of change in detention authority over that which the administration now claims in every habeas case in which the question arises and in operations throughout Afghanistan.

Finally, having convinced itself that the McKeon bill represents a dramatic departure from the AUMF regarding the scope of the conflict, the Times then sticks in this curious kicker. Assuming McKeon's language became law, the paper frets, "If a future administration wanted to attack Iran unilaterally, it could do so without having to consult with Congress."

Now I think this sentence is ludicrous. Under no conceivable reading of McKeon's language--or the AUMF--is Iran an associated force with either Al Qaeda or the Taliban. But here's the thing that the Times editorialists miss, having spent the body of the editorial misleading their readers as to the degree of change the bill would represent. If one believes that McKeon's language would authorize an attack on Iran, one also believes that the Obama administration's interpretation of the existing AUMF--an interpretation no court has challenged--would authorize an attack on Iran. So paradoxically, probably without even knowing they were doing it, the Times editorialists have weirdly suggested that President Obama could plausibly attack Iran under his understanding of existing law. Who knew the Times was so enthusiastic about robust exercises of military power?