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

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Consider how all of this contrasts with the much-maligned Patriot Act. Although the Patriot Act authorizes some detentions and additional surveillance, it does so with specificity, detailing what the government can do, to whom, and for how long. Because the Patriot Act spells out explicitly what the law is, the public and Congress can openly debate its merits. The Patriot Act's detailed enumeration of new anti-terrorism laws allowed critics to know where to attack—it lays out a tangible and fixed target. This is precisely the system our founders envisioned.

The AUMF has avoided political scrutiny because nobody, including members of Congress, knows what it allegedly authorizes. In many cases, including its warrantless surveillance program, the administration has never publicly acknowledged the policies it bases on the AUMF. In addition, the Patriot Act's sunset provision, requiring Congress to revisit it in 2005, gave lawmakers an opportunity to correct some potential civil-liberties abuses, including sneak-and-peek searches and roving wiretaps. And the Patriot Act includes reporting requirements, so that the administration must inform Congress about what it's doing. The Patriot Act is not perfect, but it is a far better model than the rush-job AUMF.

The new legislation before Congress would reaffirm "that the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad." In addition, the new bill would explicitly confer broad and novel preventive-detention authority on the president. It also "reaffirms" that "the President is authorized to detain enemy combatants in connection with the continuing armed conflict with al Qaeda, the Taliban, and associated forces, regardless of the place of capture, until the termination of hostilities."

Congress has never really done this before in the War on Terror, other than through the extremely limited provisions in the Patriot Act. Neither the original AUMF, nor subsequent legislation about the legal rights of the Guantanamo detainees (the 2005 Detainee Treatment Act or the 2006 Military Commissions Act), explicitly authorizes the president to detain a group of people.

The phrasing of the new legislation has several aims. First, "reaffirm" acts as if the president already had this authority for detentions that are now being challenged in court, when in fact he didn't. Second, the language about "continuing armed conflict" and "associated forces" expands the scope of the original AUMF—those who attacked us on 9/11—to any number of interlinked groups around the world. Third, "regardless of the place of capture" would give the president authority to detain people right here in the United States, a power that has been hotly contested in the court cases of Jose Padilla and Ali al-Marri. And, fourth, "until the termination of hostilities" would provide for indefinite detention, purportedly preventing courts from imposing any sort of time limits.

Seven years ago, the AUMF made sense as an immediate response to 9/11. But now it can no longer be the legal foundation for the war on terror. Rather than doubling down by expanding the law, Congress should work with the next administration to lay out a clear statutory framework for what powers the president has, who exactly we are engaged in armed conflict with, and how long these powers may be used. Two must-haves: a sunset provision and detailed reporting requirements so that Congress knows what the president is doing in implementing the law. In fact, the Patriot Act just might serve as a pretty good model.

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