Updating the AUMF--A Discussion

By Benjamin Wittes
Sunday, November 28, 2010, 9:18 AM

It is hardly a surprise that John Bellinger III is being attacked (here and here, for example) for his modest suggestion in the Washington Post the other day that Congress should update the AUMF. (Attacking the moderate and sensible Bellinger is a weird kind of cottage industry among lefty bloggers, but that's an ugly story for another day.) Lawfare readers will not be surprised to learn that I find his proposal to be good, simple common sense. We have a war going on. We have a legal instrument authorizing that war that is growing by the day more attenuated in its description of the conflict. Logically, therefore, if we want to both authorize and cabin the war we are fighting, we should update the instrument.

The interesting question to me is how we should update the AUMF. There have been various stabs at an update of varying degrees of seriousness and sophistication. For example, the detention legislation that Sen. Lindsey Graham introduced last summer contains the following language, which effectively shifts the focus of the war from the perpetrators of September 11 and those who supported them to the Taliban, Al Qaeda, and their co-belligerents:

b) Statement of Authority-

(1) IN GENERAL- Congress reaffirms that the United States is in an armed conflict with the Taliban, al Qaeda, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.

(2) AUTHORITY- Congress reaffirms that the President is authorized to detain unprivileged enemy belligerents in connection with the continuing armed conflict with the Taliban, al Qaeda, and associated forces, regardless of the place of capture, until the termination of hostilities.

This approach seems pretty reasonable to me (Disclosure: Bobby and I consulted on the drafting of this legislation), but there are many possible ways for Congress to authorize and guide the conflict--temporally, geographically, and in terms of the definition of the enemy. So let's write a new AUMF here on Lawfare.

I've opened a discussion on our Facebook page where readers can suggest ideas for an AUMF update, anything from thoughts towards legislation to actual legislative language. People who prefer to submit ideas confidentially can feel free to email them to Larkin Reynolds, who will post them with names scrubbed.