Congressional Authorization and the War on Terrorism
Bradley, Curtis A., Goldsmith, Jack L., Harvard Law Review
TABLE OF CONTENTS I. INTRODUCTION II. TWO MISCONCEPTIONS ABOUT THE AUMF A. War Declarations and Force Authorizations B. Is This a "Real" War? III. THE AUMF IN HISTORICAL PERSPECTIVE A. Historical Comparison of Authorizations To Use Force B. The September 18, 2001 AUMF IV. ADDITIONAL INTERPRETIVE FACTORS RELEVANT TO CONSTRUING THE AUMF A. Executive Branch Practice B. The AUMF and the International Laws of War 1. The Laws of War as a Source of Authorized Powers 2. The Laws of War as a Limitation on Authorized Powers 3. The Laws of War as a Prohibition on Presidential Action C. The President's Independent Constitutional Authority D. Clear Statement Requirements V. APPLICATIONS TO THE WAR ON TERRORISM A. Who Is the Enemy Under the AUMF? 1. Which Terrorist Organizations Are Covered by the AUMF? 2. Requisite Association with Terrorist Organizations B. Location of the Battlefield and Length of Detention 1. Location of the Battlefield 2. Length of Detention C. Military Commissions VI. CONCLUSION
This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUMF. Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the "necessary and appropriate force" that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists.
The "war on terrorism" following the September 11, 2001, attacks lacks many of the usual features that define, justify, and limit the conduct of war. The enemy intermingles with civilians and attacks civilian and military targets alike. The traditional concept of "enemy alien" is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist enemies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States. It is unclear how to conceptualize the defeat of terrorist organizations, and thus unclear how to conceptualize the end of the conflict. Uncertainty about whether and when the conflict will end, in turn, raises questions about the applicability of traditional powers to detain and try the enemy.
These uncertainties are magnified by the Bush Administration's sweeping description of the post-September 11 conflict. President Bush's statement on September 20, 2001, is typical:
Our enemy is a radical network of terrorists, and every government
that supports them. …