an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Congress is debating a defense authorization bill this week that would not only prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, but also effectively double down on the Authorization for Use of Military Force (AUMF) legislation Congress passed just after the attacks of 9/11. Here’s the bill. Recall that the 2001 AUMF has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. While congressional efforts to hamstring the criminal prosecution of terrorists are no longer new – though still just as misguided – the re-authorization for the use of force language is new, and efforts to discern what it all means have filled my inbox to overflowing. For my money, I’d say the proposed language makes matters worse for a host of reasons (more on which in a sec). So I was delighted to see the Obama Administration issue a statement yesterday threatening to VETO the entire bill if the set of detainee-related provisions are included. Here’s their take. Although the Administration has complained about the Gitmo prosecution-and-transfer restrictions in the past, this is the first time it has issued a veto threat to underscore the seriousness of its objections.
Bobby Chesney raises the question whether the veto threat should be read to extend to the AUMF redux provisions. I sure read it that way, and we should count on the Administration to say publicly otherwise if there’s any serious question of its intent. The fact that it’s threatening a veto here and hasn’t raised such a threat to earlier, fundamentally identical, transfer restriction provisions might favor the reading that it sees something new in this bill it doesn’t like even more than it didn’t like earlier bills. In any case, I hope the threat extends. Without parsing in detail, here are three of the reasons why I think the new language is a mistake. (I’m also pasting copies of the relevant bills - the original AUMF and the newly proposed language - below so you can judge for yourself. )
(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?
(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.
(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.
For the record, here’s the text of the current AUMF, followed by the text of the proposed language below.
AUMF OF 2001 (a) IN GENERAL- 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.
SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES. Congress affirms that— (1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad; (2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note); (3) the current armed conflict includes nations, organization, and persons who— (A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and 4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.