By John B. Bellinger III
Friday, November 26, 2010;
When the 112th Congress is seated in January, one of the many urgent issues it must address is to update and clarify the legal authority for U.S. military and intelligence agencies to kill and detain terrorists who threaten the United States. For the past decade, executive-branch agencies have relied on a sparely worded statute that Congress passed hastily on Sept. 18, 2001, while the wreckage of the World Trade Center was still smoldering. The Authorization for Use of Military Force (AUMF) provides insufficient authority for our military and intelligence personnel to conduct counterterrorism operations today and inadequate protections for those targeted or detained, including U.S. citizens.
The act authorizes the president to use "all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided" the Sept. 11 attacks. The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.
As U.S. forces continue to target terrorist leaders outside Afghanistan, it is increasingly unclear whether these terrorists, even if they are planning attacks against U.S. targets, are the same individuals, or even part of the same organization, behind the Sept. 11 attacks. Moreover, no law, including this act, contains specific provisions for killing terrorists who are U.S. citizens and who enjoy at least some constitutional rights, such as the Yemen-based radical cleric Anwar al-Aulaqi, whose purported targeting is the subject of a lawsuit brought by civil liberties groups.
Nor does the 2001 legislation include explicit authority for detention. Federal courts (and even civil liberties groups) have accepted that the authority to use "all necessary and appropriate force" includes the authority to detain, but the statute does not specify who may be detained, for how long or what review procedures may be used. Instead, Congress and the executive branch have left it to a small group of overworked federal judges to legislate the details piecemeal in the context of individual habeas corpus petitions.
The Obama administration has aggravated the legal shortcomings of the act by insisting that, unlike the Bush administration, it is relying only on the congressional grant of authority and not on any inherent constitutional powers of the president. Given the Bush administration's excessive assertions of executive authority, the Obama administration's dependence on the legislation alone is politically understandable. But it is legally risky. Should our military or intelligence agencies wish to target or detain a terrorist who is not part of al-Qaeda, they would lack the legal authority to do so, unless the administration expands (and the federal courts uphold) its legal justification.
For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch. Last year, President Obama announced his intention to work with Congress to enact a new detention law "consistent with our values and our Constitution." But he has backed away from this plan in deference to civil liberties groups that hope to end detention outside a criminal law framework, not to legitimize it through a more specific congressional authorization.
Civil liberties groups' opposition to a new detention law is unrealistic and shortsighted. The Obama administration has made clear that it intends to hold 50 to 100 Guantanamo detainees potentially indefinitely without criminal trial, a number that may grow given that a federal jury in New York acquitted Ahmed Ghailani this month of 284 of the 285 charges against him. While every detainee has the right to bring a habeas corpus challenge to his continued detention, once a federal judge determines that an individual has been properly detained under the AUMF (as judges have already done in 19 cases), the detainee may have no further legal right to challenge his detention for the rest of his life.
Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review. Congress can and should pass compromise legislation that balances all of these concerns.
The writer is a partner at Arnold & Porter and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He was legal adviser to the State Department from 2005 to 2009 and legal adviser to the National Security Council from 2001 to 2005.