Did Dianne Feinstein’s “Fix” on AUMF Language Actually Authorize Killing American Citizens?

To explain why it caved on its Defense Authorization veto threat, the Obama Administration had the following to say about the affirmation of detention authority.

Ensuring that we track current law and minimize risks associated with legislating on AUMF:

Made our requested modifications to the provision that codifies military detention authority under the September 2001 Authorization for Use of Military Force.  Though this provision remains unnecessary, the changes ensure that we are merely restating our existing legal authorities and minimize the risk of unnecessary and distracting litigation.

That is, the Administration says its past complaints about the AUMF language have been addressed.

On November 17, when Obama issued his veto threat, the AUMF language said:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

COVERED PERSONS–A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or who has supported such hostilities in aid of such enemy forces.

[snip]

(d) CONSTRUCTION.–. Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

The language of the conference bill Obama says he won’t veto says:

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

COVERED PERSONS–A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or who has supported such hostilities in aid of such enemy forces.

[snip]

(d) CONSTRUCTION.–. Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

If you haven’t figured it out, the specific language relating to the terms of the AUMF remains precisely the same.

In other words, Congress made no substantive changes to the AUMF language between the time the Administration issued its veto threat and the time it withdrew the threat.

And yet, when Obama issued his veto threat, he had this complaint about it.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”).  The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa’ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals.  Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.  After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.  While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

There are two explanations for why Obama backed off his veto threat on this point, then. First, we know the Administration did make a request regarding the language in the AUMF clause, though before it issued its veto threat.

As I reported last month, the big change between the original language and the Senate bill in this clause was the removal of the language exempting US citizens from indefinite detention. And that was a change made at the request of the Administration.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So maybe Obama backed off his veto threat because the final bill didn’t specifically exempt Americans from indefinite detention.

There’s the one other change made to this section between Obama’s veto threat and and his retraction of that threat today. DiFi’s cop-out language:

(e) AUTHORITIES–Nothing in this section shall be constructed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

The only thing that changed between Obama’s veto threat and his retraction of his threat–though it was depicted as a sop to civil libertarians worried about indefinite detention–is DiFi’s language.

And while DiFi’s amendment seems somewhat duplicative of the “CONSTRUCTION” language–reiterating Obama’s authority under the Afghan AUMF–it is actually more than that. To some degree, it accomplishes the same thing Mark Udall’s wrong-headed amendment did: not only reaffirm the President’s authority under the Afghan AUMF, but also the Iraq AUMF and “any other statutory or constitutional authority” regarding detention.

(2) The Authorization for Use of Military Force Against Iraq Resolution 2002 (Public Law 107-243).

(3) Any other statutory or constitutional authority for use of military force.

As I’ve noted, the Iraq AUMF has served to generalize Presidential claims to war powers against terrorists who have no ties to al Qaeda since at least 2004.

And while the Afghan AUMF and Hamdi and Quirin were–according to Charlie Savage–the primary bases claimed for the Administration’s authority to kill Anwar al-Awlaki (in spite of the fact that AQAP did not exist, and therefore should not really be included in, the 2001 AUMF), the Administration also relied on two SCOTUS cases approving of the use of “deadly force” to prevent the escape of even unarmed suspects who might pose a “significant threat of death or serious physical injury” to others (even if only to the cop using the deadly force).

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

In other words, by affirming all purportedly existing statutory authority, DiFi’s “fix” not only reaffirmed the AUMF covering a war Obama ended today, but also affirmed the Executive Branch’s authority to use deadly force when ostensibly trying to detain people it claims present a “significant threat of death or serious physical injury.” It affirms language that allows “deadly force” in the name of attempted detention.

In any case, it’s one or the other (or both). Either the AUMF language became acceptable to Obama because it included American citizens in the Afghan AUMF and/or it became acceptable because, among other things, it affirmed the Executive Branch’s authority to use deadly force in the guise of apprehending someone whom the Executive Branch says represents a “significant threat.”

My guess is the correct answer to this “either/or” question is “both.”

So DiFi’s fix, which had the support of many Senators trying to protect civil liberties, probably made the matter worse.

In its more general capitulation on the veto, the Administration stated that the existing bill protects the Administration’s authority to “incapacitate dangerous terrorists.” “Incapacitate dangerous terrorists,” “use of deadly force” with those who present a “significant threat of death or serious physical injury.” No matter how you describe Presidential authority to kill Americans with no due process, the status quo appears undiminished.

Update: I added “among other things” because the statutes the Executive Branch has relied on include a bunch of other things besides just the “deadly use of force.”

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

24 replies
  1. emptywheel says:

    @David Swanson: Yeah, but nothing in the AUMF changed in the conference at all.

    I do believe their veto was over two things: 1) retaining unlimited power to capture or kill and 2) keeping FBI where it is.

    The conference fixes made cosmetic but not legal fixes on the latter issue. The former remain precisely the same.

  2. JohnLopresti says:

    It looked like the Feinstein wording added acceptable vagueness, avoiding, for the administration, further immediate necessity that the senate now enumerate onerous specifics some of which are new as various theaters of conflict emerged, and even political entity dissociated protagonists became part of the overall morphing definition of the ‘covered’ section. In essence, Senator Feinstein possibly seems to have added more incentive for courts to address ‘current law’ from multifarious vectors. Nationism has seemed to be a shifting attribute since the whole business began to appear in the courts in a substantial way during the 90s.

  3. Daisee says:

    From Human Rights Watch – http://www.hrw.org/news/2011/12/14/us-refusal-veto-detainee-bill-historic-tragedy-rights

    “The bill would also bar the transfer of detainees currently held at Guantanamo into the US for any reason, including for trial. In addition, it would extend restrictions, imposed last year, on the transfer of detainees from Guantanamo to home or third countries – even those cleared for release by the administration.”

    Can I assume Omar Khadr will not return to Canada to finish his sentence?

  4. emptywheel says:

    @Daisee: Good question. I thought that was pretty set, but now that you mention it, it’s a discretionary thing and I can imagine either GOP raising a stink or the Admin caving.

  5. MadDog says:

    @emptywheel: This article from The Globe and Mail late last month was the most recent stuff I’ve read on Omar Khadr’s status:

    “U.S. must ‘certify’ Canada before Khadr can return

    Omar Khadr, the first Canadian convicted of murder, spying, and terrorism and held at Guantanamo Bay, needs another first before he can go home to serve out his sentence in a Canadian prison.

    Canada must first be certified as a fit place to send a convicted terrorist, a nation not likely to permit him to attack the United States, and one that has control of its prisons.

    That certification must be delivered to Congress signed by U.S. Defence Secretary Leon Panetta with “the concurrence of” U.S. State Secretary Hillary Clinton. It’s new, but hardly trivial. It’s a part of the 2011 National Defence Authorization Act, the annual funding legislation for the entire U.S. military that, among other things, outlaws using U.S. taxpayer funds to airlift a Guantanamo detainee to the United States…”

  6. MadDog says:

    OT – Regardless of what one thinks of Bill Keller, formerly the executive editor of the NYT and now one of their Opinion page writers, I would still recommend this new 9 page piece that he has up tonight in the NYT Magazine section:

    The Pakistanis Have a Point

    There is a lot of “inside baseball” stuff from both the Pakistani and US government, diplomatic, military and intelligence sides. Again whether you have to take Bill Keller with a grain of salt or not, it still makes for an interesting read.

  7. joanneleon says:

    From the AtlanticWire:

    5. What happens now. It is going to be years before civil libertarians know for sure whether the new law is constitutionality valid. Some person out there is going to have to get arrested or apprehended on U.S. soil, be accused of being a terror suspect, and then treated in the manner contemplated by the new law. That person is going to have to challenge the terms of detention and confinement. All of this will take years. In the meantime, one or two or three more Defense Authorization bills are going to pass through the Congress, each of them giving lawmakers a chance to back away from these provisions — or add clarity to them. We are, after all this time, still much closer to the beginning than to the end of this dirty business.
    http://www.theatlantic.com/politics/archive/2011/12/5-quick-thoughts-on-the-white-house-decision-not-to-veto-detainee-measure/250019/

    Isn’t it going to be difficult for that detainee to challenge anything? Will we even know where such detainees are?

  8. joanneleon says:

    I liked the last paragraph of the ACLU statement:

    “The president should more carefully consider the consequences of allowing this bill to become law,” Laura W. Murphy, director of the ACLU Washington Legislative Office. “If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”
    http://www.aclu.org/national-security/white-house-backs-away-defense-bill-veto-threat

  9. jo6pac says:

    @joanneleon:
    Who and we don’t have any idea what you’re talking about. This will be the standard anwser. Then again we that speak out will be given a life time of camping out somewhere in Amerika provided by the govt. The brown shirts are on loading dock #9 please have size, ID ready.
    Everyting is on schedule, please move along.

  10. scribe says:

    Huh?:

    So maybe Obama backed off his veto threat because the final bill didn’t specifically exempt protect Americans from indefinite detention.

  11. emptywheel says:

    @joanneleon: I think that misses two key points. First, that that is the status quo anyway. Anwar al-Awlaki’s family tried to challenge this but were unable to.

    But I also think having this authority explicitly stated makes it harder (though by no means impossible) for the Administration to avoid court review using their favorite tactic, by declaring state secrets. So on that level, at least, it may get easier for detainees to challenge this.

  12. emptywheel says:

    @David Swanson: Right. But that’s not part of the AUMF section.

    The argument here is this: Obama said there were things about this bill he found unacceptable. The AUMF language was one of those things. He now says changes were made to the AUMF language that made it acceptable. But there were no real changes–except the inclusion of American citizens in it before his veto threat and DiFi’s language after his veto threat.

    I’m not dealing with what made him withdraw his veto threat on the other sections at all.

  13. Elizabeth Sholes says:

    BS – the fix is Feinstein’s amendment to Section 1032 (b) passed 99-1 (the one was Sen Kyl) SPECIFICALLY EXEMPTING American citizens and lawfully present resident aliens from any aspect of this measure. That was Amendment 1456 passed December 1.

    Give up the fearmongering. The amendment is what we all seek. You can look it up at Thomas.loc.gov and find the MOST current version of the bill. Older ones no longer count – only this updated version. Cheer up – we are working with people who care about our civil rights!

  14. emptywheel says:

    @Elizabeth Sholes: Um. No.

    DiFi’s amendment exempting American people–which was 1126–failed 45-55. Here’s the vote, which provides the explanation to make it clear that’s the case. THe one that passed is the language I’ve cited in the post, which was Amendment 1456. Here’s that vote.

    So maybe before you lecture people about going to Thomas, you should do that yourself? Or even read some very basic coverage of the bill?

  15. Jeff Kaye says:

    @Elizabeth Sholes: “Cheer up – we are working with people who care about our civil rights!”

    Cheer up? Marcy’s textual analysis aside, even if it were true that the amendment exempting Americans from indefinite military detention were operational, it wouldn’t have any bearing on all those other poor souls — only the rest of the world! — who can be subjected to this mockery of human rights and rule of law.

    Cheer up all you innocent prisoners at Guantanamo or Bagram!
    Cheer up all you innocent people killed in the crossfire of U.S. drone assassinations and bombing raids!
    Cheer up all you “insurgents” and “terrorists” who might not like foreign occupiers in your country!
    Cheer up because American citizens won’t be subjected to the same gulag as you!

    Love your conqueror. Love the warm, cuddly President and his hard-working Congress. Love the evisceration of human rights, because it’s in the name of saving the holy assess of the American people, the good and Christian American people, who never did anything bad to anyone and only wanted democracy and the right to buy and sell and own anywhere in this blessed world where the U.S. dollar can go.

    Then, hate the rest. Hate the “terrorists” who want you to feel unsafe, who want to take away your way of life, who want to disturb your dreams. Lock them away, far, far away, where the doctors and psychologists can experiment upon them for the betterment of all! Where we won’t have to hear, much less consider, their screams.

    Yes, cheer up, “we are working with people who care about our civil rights”!

  16. JohnLopresti says:

    Those are some nice interchanges in the thread. After tossing senator Feinstein some support on the chance her moderate influence was an effort to gather centrist support so the budget would pass without too many civil rights shortcuts and short circuits, I reflected back on one case in which, if Feinstein is emphasizing the amorphous cloud of recent jurisprudence, access to courts has been getting tougher: Latif, a summary article was posted last month there. However, the nationism matter remains reverberating in much of a legal void in the terrorism context, in my view; and I appreciate EW’s close reading of the near finalized language now.

  17. P J Evans says:

    There are a couple of diaries over at the Great Orange Satan claiming that the bill doesn’t really allow the government to detain US citizens without trial. One even claims that it exempts citizens – I think they mean the amendment that failed. I’ll trust your analysis over theirs.

  18. emptywheel says:

    @P J Evans: The mandatory military detention exempts US citizens from mandatory military detention. But it ALLOWS military detention of US citizens.

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