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

By Neal Katyal and Justin FlorencePosted Wednesday, Sept. 17, 2008, at 4:20 PM ET

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

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.

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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.

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Neal Katyal, a professor at Georgetown University, argued the 2006 Supreme Court case that struck down the Bush Administration's Guantanamo trial system. He previously served as national security adviser, U.S. Department of Justice. Justin Florence is a fellow at Georgetown's Center for Law and National Security.
Photograph of President George W. Bush by Chris Kleponis/AFP/Getty Images.
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