What Would a Future Supreme Court Justice Say about the 2001 AUMF? Posted by Patrick Barry

Spencer, with a huge assist from Eli Lake's excellent piece in Reason, hits on an essential truth of the ongoing U.S. debate on how best to balance fighting terror with upholding the rule of law: anyone concerned about the legality of Predator strikes, or targeting Americans for killing had better get used to the idea that the White House is not going to give up the powers granted to it under the AUMF without a struggle.  Seconding Eli, Spencer sensibly writes that "what’s necessary is to build a political constituency for revocation or repeal of these laws, so people aren’t left in the position of having to 'trust their government to tell them when they are safe again.'" 

It seems to me that one concrete way of beginning a national conversation on this subject would be for libertarians, civil rights groups, etc. to mount a concerted campaign to get a Feingold or a Leahy to bring up the AUMF during the upcoming SCOTUS nomination hearings.  Of course, dredging up the authorization might be somewhat embarrassing for either Senator, since both voted for it back in 2001.  But, almost nine years since the vote took place, the air should be sufficiently clear for a frank, politically safe discussion of the consequences it has had for the exercise of executive power.  Having a future Supreme Court Justice comment on the authorization would further clarify where the administration's counter-terror policies sit in relation to interpretations of domestic and international law, and would signal to the White House that it shouldn't expect its use of AUMF-derived powers to go unchallenged.  It would also make the legal nuances of this debate -  which often take on an ivory-tower quality - tangible for more Americans.  

While the administration would surely chafe at such a discussion, there doesn't seem to be any way around it.  The overwhelming history of the executive branch is that once it gains authorities, it pursues and defends them to the maximum extent possible.  Getting it to establish limits is not really something that happens voluntarily. 

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There is no indication in the AUMF,Did Congress intend the AUMF to authorize wiretaps of U.S. persons in the United States?