Thursday, September 18, 2008

While You're Not Looking, Bush is Grabbing More Power

While you're distracted - either laughing hysterically at Caribou Barbie and Droopy Diapers McShame, or frantically stuffing all your cash into a mattress - Smirky/Darth is pushing through Congress their biggest dictatorial power grab yet.

Forget the Patriot Act - the real stealth legislation has always been AUMF, and the proposed "reauthorization" is a four-alarm bitch.

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.


(More after the jump.)

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.


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.

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.

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."


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.

Read the whole thing.

Cross-posted at They Gave Us A Republic ....