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.
So yes, much of the relevant portion of the speech is simple demagoguery. But then, having thrown these totally unfair darts at the fictitious policies of an administration that faces genuinely hard questions, McKeon suddenly becomes constructive. Under his leadership, he says, the committee “will also focus on detainee policy. The days of U.S. courts making policy through case law must come to an end. Armed Services Committee Members will work to craft a legislative framework for terrorist detention that protects the homeland, respects the rule of law, and upholds our high ideals.”
I’ve been waiting a long time to hear the chairman of a relevant congressional committee say words like that. And while McKeon’s speech lacked any policy specifics on the issue, what he does offer has some merit. “We need to reaffirm—in statute—the authorization to use military force of 2001.” I certainly agree with that. He will “work to legislate a framework that is guided by the law of armed conflict—not the criminal justice system.” I largely agree with that too, though I would tend to prefer a framework that is not too wedded to either the criminal justice or law-or-war models but recognizes the hybrid nature of the conflict in which America finds itself. The point is that McKeon is talking about something important underneath the demagoguery. He’s talking about legislating.
Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…
Remember, John Yoo once wrote an OLC memo claiming that because of the nature of this war the military could operate in the US with no limitations by the Fourth Amendment. That memo remained in effect for seven years. We know where they want to go with this permanent war against terror.
And here's a shorter version of that post I wrote earlier about common ground between McKeon and the administration:
