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Revisiting the AUMF

- May 16, 2013

During the April 2004 oral arguments in the Hamdi v Rumsfeld case about whether an American citizen could be detained indefinitely as an enemy combatant, Supreme Court Justice David Souter sought to probe the breadth of the Authorization for the Use of Military Force (AUMF), which the Court ultimately held did support Hamdi’s detention, albeit with some procedural rights attached.

Souter asked:

“Is it reasonable to think that the authorization was sufficient at the time that it was passed, but that at some point, it is a Congressional responsibility, and ultimately a constitutional right on this person’s part, for Congress to assess the situation and either pass more specific continuing authorization or at least to come up with the conclusion that its prior authorization was good enough. Doesn’t Congress at some point have a responsibility to do more than pass that resolution? …. You come with an authorization that the President relied on and which I will assume he quite rightly relied on at the time it was passed. But my question is a timing question. Is it not reasonable to at least consider whether that resolution needs, at this point, to be supplemented and made more specific to authorize what you are doing?”

Congress has ignored this broad hint from the bench for nine years. During that time, the Bush and especially the Obama administrations have stressed that a wide range of executive actions are justified by the continuing statutory language of the AUMF. (Obama’s team has done this more explicitly, and sought to distinguish their rationale from the Bush administration, which sometimes relied instead on inherent executive authority grounded in Article II. Whether it is better to do the wrong things for the right reasons, or vice versa, I will leave to T.S. Eliot. )

The AUMF’s text is very broad, resolving “that the President is authorized 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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” That last clause is particularly sweeping. Still, given the link in the resolution between the President’s authority and the 2001 attacks, is it broad enough to cover ongoing drone strikes (against American citizens, and not) in Yemen, Somalia, Pakistan? Intervention in Syria?  How closely connected to the 9/11 attackers, or to Al Qaeda, or to its affiliates, does someone (who could have been of grade-school age at the time) have to be, to count as someone who “aided” those attacks? Could the AUMF apply to the Boston marathon bombers?

These are the kinds of questions Souter presciently raised, and the Senate Armed Services Committee will hold a hearing today at 9:30 am to start a potentially important conversation about their resolution. The list of those testifying is here. Today’s Washington Post editorializes in favor of a new AUMF; Lawfare has a useful summary of some of the arguments here.

UPDATE – 2:36 pm, 16 May – a webcast of the hearing (3 hours plus) can be found here.