More on the New AUMF

by Deborah Pearlstein

Cross-posted at Balkinization

The U.S. House of Representatives today passed its version of the 2012 National Defense Authorization Act, including provisions that prevent any of the Gitmo detainees (or indeed any terrorism suspects) from being subject to criminal trial, and also “affirms that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces,” whomever those “forces” might be. I take some comfort in the fact that there’s still the Senate and the President’s threatened veto standing between the House bill and the law of the land.

In the meantime, responding to my post below arguing that a new authorization for use of force against Al Qaeda et al. is a bad idea, Bobby Chesney writes the following:

“[I]t seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda. From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing. I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death.”

I had expressed the view that the 2001 AUMF had some sort of implicit time limit attached, a limit one could understand as either a function of the passage of time or, as Bobby sensibly notes elsewhere, more specifically as tied to the facts on the ground. (At the moment, the passage of time has seemed to be associated with the weakening of Al Qaeda per se, but it is true that circumstances could change.) To be clear, I had O’Connor’s warning about AUMF interpretation in Hamdi in mind: “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

But Bobby’s more important point is the one I quote above – namely, that how one feels about the new legislation depends on whether one thinks we need forward-going authority to, say, detain members of Al Qaeda we might catch, say, tomorrow. In this respect, I think Bobby’s put his finger on exactly the key issue, and it’s a biggie. It’s about whether we want to continue to give the President very broad detention authority going forward. Bobby thinks he needs it. I’m not so sure.

Here’s my thinking. Let’s say we can assume, based on the outcome of habeas litigation to date, that the detainees at Gitmo and the detainees now held (or picked up in the next year or two, as the U.S. transfers detention operations to Afghan control) in Afghanistan will generally be considered by the courts and the executive to be covered by the existing AUMF (to the extent the government can establish the relevant facts). Beyond these cases, how do we measure or assess the need for forward-going detention authority to combat Al Qaeda, the Taliban and “associated groups”?
Historically, one way of making this assessment has been to defer to executive judgment. This ‘deference’ was on the grounds, the argument has gone, that the executive has the best access to information and insight into U.S. security needs. Here of course, the executive actually opposes the bill. And the initiative to expand or at least prolong detention authorization comes not from the executive branch but from folks on the Hill who, as best I can tell, haven’t spent much time formally (or informally?) seeking executive branch or other putatively expert opinion on the matter.

Another way of making the case for new and improved detention authority is to demonstrate independently that there is some unmet need out there – for example, that executive agencies have been hamstrung in their counterterrorism activities by a perceived lack of existing detention power. Given the degree of classification involved in U.S. counterterrorism operations in such matters, that kind of independent case has always been difficult to make. Indeed, to the extent I’ve seen such arguments, they seem heavily dependent on, at best, individual and unverifiable anecdotal accounts. Or on slippery logical claims that find causal connections where causation is entirely unclear. (For example, the argument that the United States is engaging in more targeted killing operations in the Af-Pak theater because they’re not sure how much detention authority they have. It seems equally plausible to me that the United States is engaging in more targeted killing operations because, say, after a decade of field intelligence collection we have a better sense of where lawful targets may be found than we did when we opened Gitmo in 2002.)

In any case, the new bill puts a premium on making a contemporary and persuasive case in favor of detention authority that lasts longer (and, under the current version, sweeps more broadly) than the authority we’ve found sufficient to deal with the detention operations we already have under way.

http://opiniojuris.org/2011/05/26/more-on-the-new-aumf/

6 Responses

  1. From a legal perspective, wouldn’t it make sense for the legislative authority to be broader than the currently envisaged requirements? From my brief reading, this is not the type of legislation that requires the executive to implement up to the full extent of the granted authority.

  2. Wonderful post, Deborah.  As Bobby mentions in the Lawfare post linked to this one, the issue to me is how to deal with new groups, such as AQAP, which are certainly ideologically but only arguably operationally aligned with al Qaeda.  The original AUMF authorized the President:

    “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons”

    There is no implicit time limit here, so far as I can tell, but there might be a 9/11 nexus requirement that groups like AQAP, those formed years after 9/11, might seek to exploit.  Given the way these groups evolve and spawn new franchises, and the uncertainty the D.C. Circuit has shown about applying the concept of co-belligerency in non-international armed conflict, I can understand why many in Congress may want to clarify this point. 

    More interesting, to me anyway, is the legal effect the new language might have on the courts’ understandng of the existence of an armed conflict going forward.  I have long wondered whether the courts might balk at finding the existence of an armed conflict when we withdraw from most significant activities in Afghanistan (since Hamdan seemed to limit its finding about the existence of armed conflict between the U.S. and al Qaeda to Afghanistan).  Can Congress conclusively establish that fact in this way?  The new language seems not to be a “declaration” of war but a “recognition” of it?  Does that, coupled with executive action in reliance on the statute, conclusively establish the propriety of the government’s resort to the IHL paradigm, and the courts’ duty to observe and apply it in appropriate cases?

  3. (Obviously, all courts to which I refer above are U.S. courts.)

  4. Response…

    John: Congress can name whatever it wants as a “war” or “armed conflict,” like the two wars that we seem to have lost (i.e., the war on poverty and the war on drugs). But congressional misapplication of terminology of import in international law does not, as such, change international law.
    Deborah, Bobby, and John: the elephant in the room is Hamdi. Justice O’Connor rightly (and quoting my Harv. J. article) noted that the armed conflict in Afghanistan allows detention of certain persons, but only for the duration unless they have been rightly prosecuted or are rightly being tried. When the international armed conflict in Afghanistan (and parts of Pakistan) is no longer an international armed conflict, the United States will have no authority under GC 5, 43, 78 to detain persons without trial. We can only be in an armed conflict of any sort under customary criteria against a state, nation, belligerent, or insurgent (Tadic aside), so the United States may lack authority to detain members of al Qaeda and “associated forces” after the international armed conflict is over. Congress cannot confer on the Executive an authority that the United States does not have under international law.
    A different question would be whether the United States has authority to detain persons under human rights law, and without a formal derogation. Human rights law prohibits “arbitrary” detention, but the word “arbitrary” is fairly unrestrained if detention is rational.
    Congress should not extend the phrase “armed conflict” to where it may look ridiculous, deflate U.S. authority abroad, empower certain groups who are then “at war” with the most powerful state in the world, serve as a terrorist recruitment tool (“war” vs. “criminal”), serve to undermine our traditional values with respect to detention outside the context of a real war, and so forth.

  5. I agree with John that the issue of the legal effect of the “armed conflict” affirmation in the new AUMF is a crucial one, and one that has not been addressed enough in all the commentary on the issue.  With Congress supporting the Executive’s determination that armed conflict exists against certain nations or organizations, it would be very hard for courts to find otherwise, irrespective of what international law might have to say on the issue.  The most obvious impact of this is on the scope of detention authority, but the scope of targeting authority is also at issue even if courts refuse to play a role in regulating this authority; Executive Branch lawyers will play a role in regulating this authority, and they will certainly be looking to this new AUMF for guidance, assuming it becomes law.

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