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Congressional Authorization and the War on Terrorism VOLUME 118 MAY 2005 NUMBER7 HARVARD LAW REVIEW ARTICLE CONGRESSIONAL AUTHORIZATION AND THE WAR ON TERRORISM Curtis A. Bradley and Jack L. Goldsmith TABLE OF CONTENTS I. IN T R O D U C T IO N ...................................................................................................................... 2048 II. Two MISCONCEPTIONS ABOUT THE AUMF ............................................................ 2056 A. War Declarations and Force Authorizations................................................................... 2057 B . Is This a "Real" W ar? .......................................................... .............................................. 2o 66 III. THE AUMF IN HISTORICAL PERSPECTIVE ................................................................... 2072 A. Historical Comparisonof Authorizations To Use Force ................................................ 2072 B . The Septem ber i8, 2oo A UM F ...................................................................................... 2078 IV. ADDITIONAL INTERPRETIVE FACTORS RELEVANT TO C ON STRUIN G TH E AU M F ................................................................................................. 2083 A. E xecutive Branch Practice......................................................................................... 2085 B. The AUMF and the InternationalLaws of War........................................................ 2o88 i. The Laws of War as a Source of Authorized Powers ................................................ 2091 2. The Laws of War as a Limitation on Authorized Powers ......................................... 2094 3. The Laws of War as a Prohibition on Presidential Action ................................... 296 C. The President'sIndependent ConstitutionalAuthority ................................................. 2100 D. Clear Statement Requirem ents ..................................................................................... 2102 V. APPLICATIONS TO THE WAR ON TERRORISM ................................................................. 2107 A. W ho Is the Enem y Under the AUM F?............................................................................. 2107 i. Which Terrorist Organizations Are Covered by the AUMF? .................................. 2109 2. Requisite Association with Terrorist Organizations .................................................. 2113 B. Location of the Battlefield and Length of Detention ..................................................... 2117 i. L ocation of the B attlefield ............................................................................................ 2117 2. L ength of D etention ...................................................................................................... 2123 C. M ilitary C om m issions ....................................................................................................... 2127 V I. C O N C LU SIO N ........................................................................................................................ 2133 2047 CONGRESSIONAL AUTHORIZATION AND THE WAR ON TERRORISM CurtisA. Bradley* and Jack L. Goldsmith** This Article presents a framework for interpreting Congress's September 18, 2001 Authorizationfor Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutionalpractice suggest that the validity of presidentialwartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the "necessary and appropriateforce" that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the internationallaws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists. I. INTRODUCTION he "war on terrorism" following the September 11, 2001, attacks lacks many of the usual features that define, justify, and limit the conduct of war. The enemy intermingles with civilians and attacks ci- * Professor, University of Virginia School of Law. ** Professor, Harvard Law School. We both recently worked in the Executive Branch. Professor Bradley served as Counselor on International Law in the Legal Adviser's Office of the Department of State from January through December 2004. Professor Goldsmith served as Special Counsel to the General Counsel of the Department of Defense from September 2002 through June 2003, and as Assistant Attorney General, Office of Legal Counsel, from October 2003 through July 2004. Nothing in this Article is intended to reflect the views of these agencies or the U.S. government more generally. For their helpful comments and suggestions, we thank David Barron, Kathy Bradley, Mar- tin Flaherty, Ryan Goodman, Derek Jinks, Larry Lessig, John Manning, Martha Minow, Caleb Nelson, Patrick Philbin, Jeff Powell, Michael Ramsey, Nick Rosenkranz, George Rutherglen, Pe- ter Spiro, Bill Stuntz, Cass Sunstein, Ed Swaine, Bob Turner, Adrian Vermeule, Andrew Vollmer, Sam Witten, Ben Wittes, participants in faculty workshops at the University of Chicago, Har- vard, and University of Virginia law schools, and participants in the Third Annual Workshop of the American Society of International Law's Interest Group on International Law in Domestic Courts. For their excellent research assistance, we thank Bryan Dayton, Brian Fletcher, Bryan Killian, and Daniel Staroselsky. Finally, we would like to thank our wives, Kathy and Leslie, for their extraordinary patience and support during the drafting of this Article. 2048 20051 WAR ON TERRORISM 2049 vilian and military targets alike. The traditional concept of "enemy alien" is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist ene- mies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States. It is unclear how to concep- tualize the defeat of terrorist organizations, and thus unclear how to conceptualize the end of the conflict. Uncertainty about whether and when the conflict will end, in turn, raises questions about the applica- bility of traditional powers to detain and try the enemy. These uncertainties are magnified by the Bush Administration's sweeping description of the post-September i i conflict. President Bush's statement on September 20, 2001, is typical: Our enemy is a radical network of terrorists, and every government that supports them. Our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated.' This conception of a general and potentially unbounded war against terrorists, combined with the legal novelties implicated by such a war, has led to an outpouring of academic literature raising concerns about Executive Branch unilateralism and, in particular, about the absence of principled limits on Executive power to identify, target, detain, and 2 try terrorists. In our view, this literature devotes insufficient attention to the leg- 3 islative underpinnings of the post-September i i war on terrorism. I President George W. Bush, Address to a Joint Session of Congress and the American People (Sept. 20, 2001), http://www.whitehouse.gov/news/releases/200Io9/200Io92o-8.html; see also, e.g., THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 5 (2oo2) ("The United States of America is fighting a war against terrorists of global reach. The enemy is not a single political regime or person or religion or ideology. The enemy is terrorism - premeditated, politically motivated violence perpetrated against innocents."), available at http://www.white house.gov/nsc/nss.pdf. 2 See, e.g., Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004); Diane Marie Amann, Guantdnamo, 42 COLUM. J. TRANSNAT'L L. 263 (2004); Laura A. Dickinson, Us- ing Legal Process To Fight Terrorism: Detentions, Military Commissions, InternationalTribunals, and the Rule of Law, 75 S. CAL. L. REV. 1407, 1413-21 (2002); Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, iI YALE L.J. 1259 (2002); Pe- ter Margulies, Judging Terror in the "Zone of Twilight": Exigency, Institutional Equity, and Pro- cedure After September 1, 84 B.U. L. REV. 383 (2004). 3 The neglect of Congress's September i8, 2ooi Authorization for Use of Military Force (AUMF) is exemplified by a set of articles published last year in the
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