The War on Terrorism Congress Never Declared — But Soon Might

November 1, 2011
Guest Post

By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.


Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

  1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

  2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

  3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

First, the background: For over ten years, the war on terrorism has been conducted pursuant to a cryptic grant of authority Congress enacted on Sept. 18, 2001. Known in shorthand as the “AUMF,” the 2001 Authorization for the Use of Military Force empowered the President “to use all necessary and appropriate force against those . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored [those who did].” Owing to its brevity (and the circumstances in which it was enacted), the AUMF was silent on a number of critical issues relating to detention, including whether it (1) authorized any non-criminal detention; (2) specifically authorized the detention of U.S. citizens; (3) specifically authorized the detention of individuals lawfully present within the United States at the time of their arrest; or (4) included any temporal or geographic limitations on the authority it provided. The AUMF also said nothing about the extent to which international law, especially the laws of war, should bear on the scope of the government’s power. And yet, if the AUMF was clear about anything, it was that the military force Congress authorized was specifically and directly targeted toward those who were responsible for the September 11 attacks. To put it bluntly, Congress did not declare war on terrorism in September 2001; it authorized military force against those whom the government reasonably believed were tied to the 9/11 perpetrators.

Over the past decade, the federal courts, with the Supreme Court in the lead, have answered many of the AUMF’s unanswered questions. Thus, the courts have now established that the AUMF does authorize detention, including of U.S. citizens captured on foreign battlefields. Similarly, the Supreme Court has repeatedly emphasized that the AUMF should be read consistently with international law — which may not settle some of the hardest questions raised in these cases, but at a minimum provides far better guidance than the amorphous language Congress enacted one week after September 11 (e.g., the requirement that the detainee be a belligerent properly subject to military detention under the laws of war). The lower courts have reached conflicting holdings as to whether the AUMF authorizes the detention of U.S. citizens or non-citizens lawfully present within the United States, with the Supreme Court thus far avoiding that question. Most of all, though, the courts have repeatedly — if implicitly — reaffirmed the central connection between the AUMF and September 11. Thus, even as judges have eschewed a formal approach to the question of whether a detainee is a “member” of al Qaeda, analysis of the government’s detention authority has invariably turned on the extent to which the government can prove that the detainee was effectively “part of” al Qaeda or its closest affiliates. I don’t necessarily mean to commend the work of the federal courts in this field, but rather to suggest that there are clear, coherent, and limited principles driving the analysis in virtually all of these decisions.

Section 1031 of the NDAA, in contrast, would vitiate the nuance in this jurisprudence. Thus, although the current language reiterates the AUMF’s authority, it goes on to authorize in addition the detention of “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” (emphasis added). This language may seem unobjectionable, but parse it carefully: an individual may be detained for providing “direct support” (which, in the government’s view, may be nothing more than minor financial or logistical assistance) in aid of “associated forces” that are “engaged in hostilities against . . . coalition partners.” Thus, the NDAA effectively authorizes the military detention of any individual who provides such assistance anywhere in the world to any group engaged in hostilities against any of our coalition partners, whether or not the United States is in any way involved in (or even affected by) that particular conflict.

In one fell swoop, the NDAA thereby severs the requirement that detention be tied to a group’s responsibility for the September 11 attacks; overrides international law by authorizing detention of individuals who may have never committed a belligerent act; and effectively converts our conflict against those responsible for September 11 into a worldwide military operation against a breathtaking array of terrorist groups engaged in hostilities against virtually any of our allies.

But even more ominous than the NDAA’s applicability in far corners of the globe is its application at home. Section 1031(d) provides that the NDAA’s authority doesn’t apply to individuals lawfully present within the United States (including U.S. citizens) “except to the extent permitted by the Constitution of the United States.” Whereas this provision might appear to bar such detention, it in fact authorizes it, since the principal constraint on the government’s power to detain U.S. citizens is not the Constitution, but rather a 1971 Act of Congress that provides that “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Thanks to the language of section 1031, the NDAA would be just such an Act, since its text specifically authorizes detention to the extent that it is not barred by the Constitution.

Sunday’s Washington Post editorial referred to these “updates” to the AUMF as “wise[].” In light of the above analysis, I couldn’t disagree more. Reasonable minds may well be at ends over whether the AUMF needs updating. For now, I think it suffices to observe that if the Obama Administration really believed it needed any of these sweeping and limitless new authorities, it wouldn’t be opposing them