Obama and the AUMF

In its last months in office the Bush Administration is pushing for renewal of the Authorization for Use of Military Force. Neal Katyal and Justin Florence note in Slate that the new AUMF grants the president power to detain people captured within the United States for essentially unlimited duration:

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.

This is exactly the sort of abuse of executive power that Obama’s supporters are hoping he will end. Yet when Slate reporter Emily Bazelon contacted the Obama campaign for comment on the AUMF, the response was less than reassuring:

Opposing this should be a no-brainer for Obama, but when I called his advisers, I got only a hands-off, “we don’t want to get into it” response. The campaign said it was trying to stay on message. For sure there is better political hay for a Democrat to make this week. And the McCain campaign didn’t call me back at all. But it’s a reminder that candidates don’t win by talking boldly about the presidency as a self-effacing institution. Presidential modesty can be a hard virtue to sell.

Contrast this with Obama’s remarks earlier this month in defense of habeas corpus:

Obama, who taught constitutional law at the University of Chicago for more than a decade, said captured suspects deserve to file writs of habeus corpus.

Calling it “the foundation of Anglo-American law,” he said the principle “says very simply: If the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ And say, ‘Maybe you’ve got the wrong person.'”

The safeguard is essential, Obama continued, “because we don’t always have the right person.”

Obama talks a good game when it comes to fighting civil liberties abuses. But when it comes to taking concrete steps to rein in the executive power he may soon wield, he’s worryingly unwilling to take a stand.

[Hat tip to Andrew Sullivan.]

Don’t forget about FISA


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