Why Congress shouldn't give the president more power.

Why Congress shouldn't give the president more power.

Why Congress shouldn't give the president more power.

The law, lawyers, and the court.
Sept. 17 2008 4:20 PM

Mistaken Authority

Congress should say no to Bush's last-gasp bid for more executive power.

President George W. Bush. Click image to expand.
President George W. Bush

Seven years ago Thursday, Congress passed a statute in response to the horrible attacks of 9/11, inflicted on our nation the week before. That law became the basis for sweeping assertions of government power, including warrantless wiretapping, detentions in the continental United States and at Guantanamo Bay, targeted assassinations, extraordinary renditions, and coercive interrogations. Now, in the few days it has left, the Bush administration wants to expand this law. That would be a mistake.

We are not referring to the USA Patriot Act, passed in October 2001, which quickly became a proxy for the administration's civil-liberties controversies. (As Al Gore put it, "I believe that the Patriot Act … became a kind of Tonkin Gulf Resolution conferring Congress' blessing for this president's assault on civil liberties.") Instead, we write about the 2001 Authorization for Use of Military Force—viewed at the time simply as congressional approval for a military response in Afghanistan. While the Patriot Act comprises more than 100 sections and more than 50,000 words, the AUMF is just two short sections and a few dozen words.

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Although you would not know it from comparing the public responses to these two laws, the Bush administration has depended on the AUMF, not the Patriot Act, to authorize its boldest practices. Now, President Bush and his supporters in Congress are seeking a new AUMF because even conservative judges on the federal courts have trimmed the exaggerated readings that the administration has given the 2001 law.

Why would the Bush administration seek to renew these powers as it exits office, with the possibility of a Democratic presidency a few months away? Two reasons. First, in light of the Supreme Court's decision last June in the latest Guantanamo case, Boumediene v. Bush, habeas petitions filed by the Guantanamo detainees are moving through the courts. And for the first time since detainees were brought to Guantanamo more than five years ago, the federal courts have undisputed authority to inquire into the government's legal authority to hold people—there are no more jurisdictional hurdles that the government can erect. That's reason for the administration to want to bolster its authority to hold some people who were either captured away from the battlefield or had little to do with 9/11. A second reason for the administration's interest may be its belief that grants of war powers to the president are a one-way ratchet: If Congress agrees now, it will be harder in future to dial back.

But reaffirming or expanding the AUMF would pose a number of dangers. The AUMF broadly states that the president may use "all necessary and appropriate force" to prevent future terrorist attacks. That breadth of language led the administration to claim the AUMF authorized a vast range of practices, such as warrantless wiretapping, that Congress never had any inkling of when it passed the law. Only some of those programs have come to light; we know little about what else lurks under the auspices of the AUMF.

The AUMF also has no time limit. The consequences are revealed in the administration's claims that it can detain an individual indefinitely in the war on terror, even after he has completely served the sentence imposed on him by a jury in a military tribunal. A law giving the president perpetual war powers is an anomaly in our constitutional system. Moreover, the AUMF gives Congress no ongoing oversight role in the war on terror. It does not mandate that the administration report to Congress on what it has done.

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Consider how all of this contrasts with the much-maligned Patriot Act. Although the Patriot Act authorizes some detentions and additional surveillance, it does so with specificity, detailing what the government can do, to whom, and for how long. Because the Patriot Act spells out explicitly what the law is, the public and Congress can openly debate its merits. The Patriot Act's detailed enumeration of new anti-terrorism laws allowed critics to know where to attack—it lays out a tangible and fixed target. This is precisely the system our founders envisioned.

The AUMF has avoided political scrutiny because nobody, including members of Congress, knows what it allegedly authorizes. In many cases, including its warrantless surveillance program, the administration has never publicly acknowledged the policies it bases on the AUMF. In addition, the Patriot Act's sunset provision, requiring Congress to revisit it in 2005, gave lawmakers an opportunity to correct some potential civil-liberties abuses, including sneak-and-peek searches and roving wiretaps. And the Patriot Act includes reporting requirements, so that the administration must inform Congress about what it's doing. The Patriot Act is not perfect, but it is a far better model than the rush-job AUMF.

The new legislation before Congress would reaffirm "that the United States is 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." In addition, the new bill would explicitly confer broad and novel preventive-detention authority on the president. It also "reaffirms" that "the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities."

Congress has never really done this before in the War on Terror, other than through the extremely limited provisions in the Patriot Act. Neither the original AUMF, nor subsequent legislation about the legal rights of the Guantanamo detainees (the 2005 Detainee Treatment Act or the 2006 Military Commissions Act), explicitly authorizes the president to detain a group of people.

The phrasing of the new legislation has several aims. First, "reaffirm" acts as if the president already had this authority for detentions that are now being challenged in court, when in fact he didn't. Second, the language about "continuing armed conflict" and "associated forces" expands the scope of the original AUMF—those who attacked us on 9/11—to any number of interlinked groups around the world. Third, "regardless of the place of capture" would give the president authority to detain people right here in the United States, a power that has been hotly contested in the court cases of Jose Padilla and Ali al-Marri. And, fourth, "until the termination of hostilities" would provide for indefinite detention, purportedly preventing courts from imposing any sort of time limits.

Seven years ago, the AUMF made sense as an immediate response to 9/11. But now it can no longer be the legal foundation for the war on terror. Rather than doubling down by expanding the law, Congress should work with the next administration to lay out a clear statutory framework for what powers the president has, who exactly we are engaged in armed conflict with, and how long these powers may be used. Two must-haves: a sunset provision and detailed reporting requirements so that Congress knows what the president is doing in implementing the law. In fact, the Patriot Act just might serve as a pretty good model.