Why Congress shouldn't give the president more power.

The law, lawyers, and the court.
Sept. 17 2008 4:20 PM

Mistaken Authority

Congress should say no to Bush's last-gasp bid for more executive power.

President George W. Bush. Click image to expand.
President George W. Bush

Seven years ago Thursday, Congress passed a statute in response to the horrible attacks of 9/11, inflicted on our nation the week before. That law became the basis for sweeping assertions of government power, including warrantless wiretapping, detentions in the continental United States and at Guantanamo Bay, targeted assassinations, extraordinary renditions, and coercive interrogations. Now, in the few days it has left, the Bush administration wants to expand this law. That would be a mistake.

We are not referring to the USA Patriot Act, passed in October 2001, which quickly became a proxy for the administration's civil-liberties controversies. (As Al Gore put it, "I believe that the Patriot Act … became a kind of Tonkin Gulf Resolution conferring Congress' blessing for this president's assault on civil liberties.") Instead, we write about the 2001 Authorization for Use of Military Force—viewed at the time simply as congressional approval for a military response in Afghanistan. While the Patriot Act comprises more than 100 sections and more than 50,000 words, the AUMF is just two short sections and a few dozen words.

Advertisement

Although you would not know it from comparing the public responses to these two laws, the Bush administration has depended on the AUMF, not the Patriot Act, to authorize its boldest practices. Now, President Bush and his supporters in Congress are seeking a new AUMF because even conservative judges on the federal courts have trimmed the exaggerated readings that the administration has given the 2001 law.

Why would the Bush administration seek to renew these powers as it exits office, with the possibility of a Democratic presidency a few months away? Two reasons. First, in light of the Supreme Court's decision last June in the latest Guantanamo case, Boumediene v. Bush, habeas petitions filed by the Guantanamo detainees are moving through the courts. And for the first time since detainees were brought to Guantanamo more than five years ago, the federal courts have undisputed authority to inquire into the government's legal authority to hold people—there are no more jurisdictional hurdles that the government can erect. That's reason for the administration to want to bolster its authority to hold some people who were either captured away from the battlefield or had little to do with 9/11. A second reason for the administration's interest may be its belief that grants of war powers to the president are a one-way ratchet: If Congress agrees now, it will be harder in future to dial back.

But reaffirming or expanding the AUMF would pose a number of dangers. The AUMF broadly states that the president may use "all necessary and appropriate force" to prevent future terrorist attacks. That breadth of language led the administration to claim the AUMF authorized a vast range of practices, such as warrantless wiretapping, that Congress never had any inkling of when it passed the law. Only some of those programs have come to light; we know little about what else lurks under the auspices of the AUMF.

The AUMF also has no time limit. The consequences are revealed in the administration's claims that it can detain an individual indefinitely in the war on terror, even after he has completely served the sentence imposed on him by a jury in a military tribunal. A law giving the president perpetual war powers is an anomaly in our constitutional system. Moreover, the AUMF gives Congress no ongoing oversight role in the war on terror. It does not mandate that the administration report to Congress on what it has done.

TODAY IN SLATE

Politics

Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Hong Kong’s Protesters Are Ridiculously Polite. That’s What Scares Beijing So Much.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

A Jaw-Dropping Political Ad Aimed at Young Women, Apparently

The XX Factor
Oct. 1 2014 4:05 PM Today in GOP Outreach to Women: You Broads Like Wedding Dresses, Right?
Music

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

How Tattoo Parlors Became the Barber Shops of Hipster Neighborhoods

This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century

Moneybox
Oct. 1 2014 8:34 AM This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century To undertake a massively ambitious energy project, you don’t need the government anymore.
  News & Politics
Politics
Oct. 1 2014 7:26 PM Talking White Black people’s disdain for “proper English” and academic achievement is a myth.
  Business
Moneybox
Oct. 2 2014 9:19 AM Alibaba’s Founder on Why His Company Is Killing It in China
  Life
Quora
Oct. 2 2014 8:27 AM How Do Teachers Kill the Joy of Reading for Students?
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Culturebox
Oct. 2 2014 9:08 AM Demons Are Real A horror movie goes behind the scenes on an Intervention-like reality show.
  Technology
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Bad Astronomy
Oct. 2 2014 7:30 AM What Put the Man in the Moon in the Moon?
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?