The legal framework for the last decade of unrestrained — and, at times, domestically corrosive — warfare is deceptively simple. It’s a small resolution, passed just a few days after the terrorist attacks of September 11th, 2001, unanimously in the Senate, and over only one dissenting vote in the House (Barbara Lee, D-CA). The full document (PDF) follows the jump, below.
Innocuous, no? But as Politico notes (at the behest of a few Republican members), the resolution justifies all manner of abuses, because the Supreme Court construes congressional military authorizations as permitting all necessary incidents to warfare. Under the most generally accepted separation of powers framework, this legislative authorizations delegate all of Congress’ war powers, meaning the only limits on the President’s power are those on the federal government itself. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 (1952) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.”).
It won’t be surprising, then, that this general authorization represents, absent some clear language to the contrary or clearly applicable legal standard, an authorization for torture, indefinite detention… the list goes on.
Let’s assume the current AUMF continues to authorize the war on terror, despite Bin Laden’s death (as I suspect it does). Best practices suggest we should amend the AUMF to continue the war, just in case; shouldn’t we also take the chance to limit the president’s power, and make clear that we will no longer tolerate extreme abuses in our name? After all, Obama could lose in 2012, and even though he hasn’t been able to specifically end many of the abuses of the Bush years, a Republican in the White House would mean a President dedicated to continuing, rather than trying his best to restrain, those crimes. A new AUMF would bind this, and all future Presidents. Isn’t that worth trying?
Yes. But the sad truth is, it won’t work.
Politically, a limited AUMF would never pass. Regardless of poll numbers on national security issues, President Obama now lacks (if he ever truly had) a compliant supermajority, and as we all saw in last week’s debate, the Republican Party specifically and cheerily endorses torture. Boehner’s House could (and probably would) prevent an AUMF that limited torture from ever crossing the President’s desk. But more shockingly, any Republican President would likely ignore putative limits on his ability to torture detainees. President Bush did just that by signing statement. Why wouldn’t the next guy?
Perhaps we should try anyways. But it’s a sad state of affairs when we can’t trust the law to enforce some restraint on our own brutality.
Update: more on the party of torture.
* * Expand article for full text of AUMF * *
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the “Authorization for Use of
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(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.
(b) War Powers Resolution Requirements.–
(1) Specific statutory authorization.–Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) Applicability of other requirements.–
Nothing in this resolution supercedes any requirement of the War Powers Resolution.