TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Although Congress clearly intended the AUMF to authorize military force,both the Bush and Obama Administrations have relied on the AUMF as theprimary legal justification for a number of controversial counterterrorismprograms implemented by non-military personnel. National security lawyersin both Administrations argue that the AUMF provides the President with theauthority to conduct all necessary operations that are an inherent aspect ofwar, such as intelligence collection and detention of combatants.President Bush used the Act to justify warrantless electronic surveillance,coercive interrogations and ad-hoc military tribunals for suspected terroristsat Guantanamo Bay. For example, to conduct the surveillance program,in which the NSA warrantless monitored and collected the electronic communicationsof suspected terrorists located in the United States and individualsabroad, the Bush Administration explicitly claimed that the AUMFgave it the necessary authority:In the specific context of the current armed conflict with al Qaedaand related terrorist organizations, Congress by statute has confirmedand supplemented the President’s recognized authority under ArticleII of the Constitution to conduct such warrantless surveillance toprevent further catastrophic attacks on the homeland. 5President Bush’s reliance on the AUMF, however, was over expansive. Today,many aspects of the Bush Administration’s interpretation of the actions warrantedunder the AUMF have eroded. Judicial and legislative pressure eventuallyforced Bush to cede that the AUMF did not provide sufficient authority forwarrantless surveillance and brought the program back under the oversight ofthe judicial branch. In 2006, the Supreme Court struck down the GuantanamoBay military tribunals in Hamdan v. Rumsfeld. In that case, the Court foundthat the military tribunals in fact violated standing law in the Uniform Codeof Military Justice, as well as the Geneva Conventions. The Supreme Courtexplicitly noted that, “there is nothing in the text or legislative history of theAUMF even hinting that Congress intended to expand or alter” previous militarytribunal authorizations. 6Despite a more conservative interpretation of the authority afforded the Presidentunder the AUMF, the Obama Administration continues to rely on thelaw for many of its most important counterterrorism programs and policies.Nearly ten years after 11 September, the AUMF remains a crucial aspect of thenational security legal framework.10 Trials by Fire: Counterterrorism and the Law

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