As I tweeted and wrote for Danger Room today, the incoming chairman of the House Armed Services Committee, Rep. Buck McKeon, briefly argued in a speech today that Congress should “reaffirm — in statute — the Authorization to Use Military Force of 2011.” To expand on that: McKeon mentioned the AUMF in the context of detainee policy — that is, to keep terrorism detainees out of federal courts. But it clearly goes beyond that. Here’s what a McKeon aide told me:
The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.” Sounds like the shadow wars may get some sunshine.
For the Obama administration, AUMF has operated like an Emergency Law, providing blanket authorities for things like drone strikes beyond Afghanistan that are never mentioned in the brief 2001 language. A new AUMF would at least be more specific about what powers Congress actually intends the president to have to conduct a war against al-Qaeda — as well as, perhaps, what the boundaries of those authorities might be. It’s still not a declaration of war — my understanding is there’s not an appetite for that in Congress — but it also would represent the first congressional reconsideration of the scope of a war that, in practice, is endless. That could go in any number of directions, but at least it’ll be debated.
As for the actual detention structure McKeon advocates for the AUMF, take a look at H.R. 4892, which he introduced last year. A relevant section:
An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.
Not so dissimilar to what Lindsey Graham has advocated, and I imagine my friends at Lawfare would be pretty stoked to see this debated as well. (Ah, I see Ben Wittes has some mixed preliminary feelings.) The relevant question for revisiting the AUMF with a detention structure in mind is if the revised AUMF would bound the period of hostilities for which such an “unprivileged enemy belligerent” may be detained.
But make no mistake: the next Congress really will debate a terrorism detention statute. I don’t currently understand how Graham’s proposals would be different than the old Combatant Status Review Tribunals at Guantanamo, with an annual review — except this time by a federal judge (if I understand Graham correctly, that is). McKeon’s removing any doubt that Graham is alone on this. It’s beyond Guantanamo, it’s systematic, and the Obama administration’s perspective on it doesn’t appear to be decided yet.