Eli Lake on the AUMF

by Kevin Jon Heller

Eli Lake has a fantastic essay at Reason.com on the myriad ways in which Obama has replicated the worst excesses of the Bush administration with regard to national security.  He rightly identifies the source of the problem — the AUMF, which was passed in a fit of hysteria three days after 9/11 and has no natural expiration date.  Here is the final paragraph:

Above all, we must be honest with ourselves. Obama, like Bush, is committed to a long war against an amorphous network of terrorists. In at least the constitutional sense, he is no harder or softer than his predecessor. And like his predecessor, he has not come up with a plan for relinquishing these extraordinary powers once the long war ends, if it ever does. If change is going to come to U.S. policy on terrorism, it will have to come from a bipartisan recognition that Americans cannot trust their government to tell them when they are safe again.

I am normally skeptical of claims that we need more bipartisanship, because in the present political climate they are normally code for “Democrats need to act more like Republicans.”  But there is definitely an elective affinity between progressives and libertarians concerning issues of (ever-expanding) executive power.  When Eli Lake and Glenn Greenwald are in substantial agreement about something, we ignore their views at our peril…

http://opiniojuris.org/2010/04/20/eli-lake-on-the-aumf/

3 Responses

  1. Kevin,

    I sympathize with your point on the Obama administration but we should not overlook the role the courts (and the public) have in this.  In Hamdi, the Supreme Court held that the AUMF authorized the Bush administration to hold enemy combatants until the cessation of hostilities (albeit, not indefinitely) without defining the term “enemy combatants”.   Given this, it is hardly surprising - and indeed many legal scholars predicted at the time – that the subsequent administration would not willingly give up the power to hold individuals pursuant to the AUMF.  (Greenwald and others prefer to concentrate on the Supreme Court’s decision in Hamdan, which read the AUMF somewhat more narrowly in the context of war crimes trials).  Presumably the argument for holding detainees would be weaker when/if the US ever gets out of Iraq and Afghanistan. 

    If you look at Lake’s central premise that ” The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan)” only the last practice has not been authorized by the Supreme Court and/or Congress.  And I suspect that were Obama to ask for authority to carry out assassinations in places like Yemen, Congress would gladly give it to him (just as Congress rushed to approve the military commissions act post-Hamdan).   For the time being, the administration seems to be of the questionable, but not nonsensical view, that the AUMF authorizes the assassinations.   

    If we look at the administration’s actions from a political science point of view, we can understand the slow pace of change.  There is a little public demand for reversing many of Bush’s terrorism-era policies and even less will in Congress.  So the question becomes how much capital Obama is willing to spend, when he has important domestic priorities as well.  (indeed, witness the backlash over seemingly innocuous measures such as moving detainees from Guantanamo to US prisons and banning water-boarding(!)). 

    This is not to justify the administration’s lack of action in repealing the AUMF, but I think the object of ire should not be Obama as much as the American public at large that, for better or worse, seems to have little problem with the fact that the AUMF is seen to authorize detainee and assassination policy. 

  2. If the Democrats in Congress TRULY had the courage of their convictions, they could and would propose and push a resolution terminating the effectiveness of the AUMF.

  3. Yep…. 3,000 people dead. Billions of dollars of property destroyed. Just a little hysteria. OKAY.

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