Thursday, May 05, 2011

The AUMF and Executive Detention

Gerard N. Magliocca

And now for something completely different. Liza Goitein, who is a guest blogger here, is my friend and law school classmate, and we thought that it would be fun to try some posts every once in a while in which we would go back-and-forth on a topic. Depending on your point of view, this could be called "Point-Counterpoint," "Crossfire," or "Waldorf & Statler," (the two muppets who make fun of everyone from the balcony).

To start this off, I want to repeat an observation that I made over on Concurring Opinions about the death of Bin Laden. In my view, this does not terminate the authorization given to the President by Congress after 9/11 to detain indefinitely alleged enemy combatants. The Supreme Court was quite clear in Hamdi that the AUMF would continue to authorize such detentions so long as combat operations were ongoing in Afghanistan. If the President carries out his promise to withdraw from the Afghan war this summer, then I think that the detainees would have a viable claim that they could no longer be held without a new authorization. But not until then, and even then it would depend on the nature of the withdrawal.

Liza -- you're up!

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