The problem with the AUMF

Gregory Johnsen has a long article about the Authorization for the Use of Military Force. It’s about how the AUMF has been used to pretty much do almost anything. Here it is:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

It’s now being used to go after people who had absolutely nothing to do with 9/11. Here are two bits that show how bad the current situation is:

“The hearing made clear that the Obama administration’s long insistence that it is deeply legally restrained under the AUMF is misleading and at a minimum requires much more extensive scrutiny,” Goldsmith wrote. Goldsmith’s post and Sheehan’s public evasions raised a key question: Twelve years after 9/11, who exactly is the U.S. at war with?

When I contacted the Pentagon to get an answer, a spokeswoman emailed back: “The list is classified and not for public release.”

Perhaps the most interesting question about the AUMF and its 60 words is this: What does that sentence prohibit? What — more than 12 years after Congress passed it — is clearly out of bounds?

Several of the lawyers I talked to, officials from both the Bush and Obama administrations, spoke eloquently and at great length about the limits of the AUMF and being constrained by the law. And maybe that is true. But none of them were able to point to a case in which the U.S. knew of a terrorist but couldn’t target him because it lacked the legal authority. Each time the president wanted to kill someone, his lawyers found the authority embedded somewhere in those 60 words.

Really, you should go read the whole thing.

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