Monday, May 23, 2011

What's New about the "New AUMF"?

Jonathan Hafetz

An important question surrounding the new (or renewed) military force authorization now working its way though Congress is whether, and more precisely how, it changes and expands upon the existing Authorization for Use of Military Force (AUMF), passed by Congress three days after the 9/11 attacks. The answer depends largely on how one views the current AUMF and the gloss that the courts and two administrations have put on it.

The proposed legislation, section 1034 of the House version of the 2012 National Defense Authorization Act (NDAA), makes several textual changes to the AUMF, including explicitly recognizing that the U.S. is engaged in an armed conflict with al Qaeda and the Taliban; stating that the armed conflict extends to "associated forces"; providing express authorization to detain; and, perhaps most importantly, eliminating any reference to the 9/11 attacks.

These changes, however, are less significant in light of how courts, as well as the prior and current administrations, have interpreted the current AUMF. The government has argued, and courts have generally accepted, that the United States is engaged in an armed conflict with al Qaeda and the Taliban; that this conflict extends to "associated forces" (though see, for example, the D.C. Circuit's opinion in Parhat v. Gates for some possible constraints on the term's breadth); and that the AUMF authorizes at least some military detention (see, for example, Hamdi v. Rumsfeld). NDAA section 1034 does not provide any explicit geographic limit, but neither did the AUMF (though some courts have inferred some limits, including the AUMF's non-applicability as a source of domestic detention power). Section 1034 does supply a basic definition of the government's detention power, which it says includes those who are "part of" or "substantially supporting" al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its coalition partners. But this definition tracks the Obama administration's and is generally consistent with what lower courts have held, with the caveat that judges have focused mainly on the "part of" prong and divided on their acceptance and interpretation of a "support" prong. (The Supreme Court, as well as the Obama administration, have determined that the AUMF is informed by the laws of war, and the proposed legislation does nothing to alter that understanding). The Supreme Court, meanwhile, has not revisited the scope of AUMF-based detention power since it decided Hamdi almost seven years ago. Thus, in many respects, section 1034 affirms the status quo understanding of the AUMF as a detention statute while deferring resolution of the outer limits of the president's detention power. Even section 1034's elimination of any reference to 9/11 may be less of a change than it initially seems, as the government has thus far succeeded in extending the AUMF beyond al Qaeda or others responsible for the 9/11 attacks by characterizing those groups and their members as an "associated force." (See, for example, Al-Aulaqi v. Obama)

So if there's more continuity than change, why a new AUMF, and what does it signify? Three factors animating section 1034 are the recent killing of bin Laden, the anticipated withdrawal of U.S. troops from Afghanistan, and the United States' increasing focus on terrorist organizations operating in other regions of the world, such as in Yemen and Somalia. These developments, to be sure, underscore that there are still doubts about the AUMF's geographic and temporal scope--doubts the proposed legislation is intended to quell by affirming that the United States remains engaged in a "war on terror" that extends beyond al Qaeda or the armed conflict in Afghanistan. But the "new AUMF" also demonstrates how much the war paradigm, grounded in the current AUMF, has permeated government agencies, gained acceptance among lawmakers and judges, and shaped public opinion in the decade since 9/11. Moreover, it suggests the degree to which Congress and the American people seem willing to cede even greater--and more permanent--powers to the executive the further in time we get from the attacks themselves.