Authorization for Use of Military Force
On September 18, 2001, President Bush signed the Authorization for Use of Military Force (AUMF) into law.[1] Through the AUMF, Congress authorized the President to initiate military operations in response to the September 11 terrorist attacks against the United States. Section 2(a) of the AUMF articulates this express expansion of Executive power, stating that the President is authorized to
“use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . .”[2]
Section 2(b) proceeds by providing the “specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution,”[3] which requires the President to obtain congressional authorization for the prolonged deployment and use of United States armed forces.[4]
Soon after the passage of the AUMF, President Bush utilized his enhanced war powers to send troops to Afghanistan and to escalate efforts to combat domestic terrorism.[5] The President additionally invoked the “use of all necessary and appropriate force” language of the AUMF in asserting his authority to indefinitely detain any individual designated as an “enemy combatant” and to try “enemy combatants” before a military commission under rules and procedures promulgated by the Secretary of Defense.[6] In a series of subsequent habeas corpus cases (often referred to as the “Enemy Combatant Cases”), the Supreme Court rejected this assertion of Executive authority. The Court ruled that the President could not indefinitely detain “enemy combatants” without adequate judicial review and that Congress must provide explicit authorization before the President may convene military commissions.[7]
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[1] Richard F. Grimmett, , CRS Report for Congress, Authorization for Use of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History 1 (2007), available at http://www.fas.org/sgp/crs/natsec/RS22357.pdf.
[2] Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541).
[3] War Powers Resolution, 50 U.S.C. § 1544 (b).
[4] Id.
[5] Robert J. Pushaw, The “Enemy Combatant” Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, 82 Notre Dame L. Rev. 1005, 1047 (2007); See Military Order of November 13, 2001, Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism, 3 C.F.R. 918 (2001).
[6] Pushaw, supra note 5, at 1047.
[7] See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that while the AUMF did authorize the President to detain American citizens and designate them “enemy combatants,” American citizens possessed a constitutional right to habeas corpus review); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (holding that the AUMF did not authorize the President to convene military commissions).