May 24, 2011 | Commentary on Rule of Law
Neither statement presents anything new. The first simply reflects the 2001 Authorization for Use of Military Force (AUMF). The second has long been the rule in the law of armed conflict. Both reflect positions taken consistently by the George W. Bush and Obama administrations and the Supreme Court.
Yet outfits like the American Civil Liberties Union (ACLU), the New York Times and the far-left Moveon.org are up in arms. The ACLU and its allies wrote to Congress calling the detainee language a “Declaration of War.” The Gray Lady slammed the bill in a recent editorial, asserting it would “make the war on terror a permanent and limitless aspect of life on earth” and somehow create a “huge potential for abuse.”
The irony is that the repetitive claims of these critics, namely that the original AUMF did not include the power to detain or even the word “detain,” is one of the driving forces behind this legislation.
For almost 10 years, groups like the ACLU have argued that the AUMF does not specifically authorize the government to detain terrorists. Their bumper-sticker slogans - “You have to try them or set them free,” “Guantanamo is a law-free zone,” “Indefinite detention is illegal” - are plain wrong as a matter of law. But that hasn’t stopped the New York Times and other outlets from repeating these sentiments ad nauseam.
In fact, the Supreme Court has explicitly rejected claims that wartime detention of belligerents is unconstitutional or even unusual. In a 2004 case, the attorney for detainee Yaser Esam Hamdi argued that detention had “no basis in historical practice or precedent.” He characterized the government’s position - that AUMF necessarily included the power to detain as a common incident of armed conflict - as a “blank check theory.”
The Supreme Court disagreed. Its ruling explained that the AUMF authorized the detention of enemy combatants until the cessation of hostilities. Detention, it wrote, was a “clearly established principle of the law of war,” supported by the Geneva Conventions, Hague Convention and a long-standing historical practice.
But the Hamdi ruling didn’t quiet the critics, who continued to argue that because the AUMF does not include the word “detention,” the government may not lawfully detain terrorists. Just last year, lawyers for Adham Mohammed Ali Awad, now of Guantanamo Bay, repeated this central claim in court: “By its plain terms, the AUMF only speaks to the prevention of ‘future acts of international terrorism against the United States.’ The AUMF does not authorize the president to detain individuals indefinitely.”
The Obama administration responded forcefully to these claims. In court filings, it asserted, as had the Bush administration earlier, that the president has the “authority to detain persons” responsible for the Sept. 11, 2001, attacks and “also the authority to detain persons who were part of, or substantially supported, Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.” No ambiguity there.
The language employed by the Obama administration is virtually identical to that in the legislation Congress will consider this week.
Given the position of two administrations and the courts’ consistent rulings on detention authority, this bill plainly does nothing to expand the war or give the president any more authority than he already has under the original AUMF.
This is simply Congress calling the bluff of the “blank check” crowd - by filling in the blanks regarding detention authority with the clarity that the ACLU ostensibly has sought for nearly a decade. As the saying goes, “Be careful what you ask for, you just might get it.”
Charles “Cully” Stimson, a former deputy assistant secretary of defense for detainee affairs, is a senior legal fellow at the Heritage Foundation.
First appeared in The Washington Times