Advancing a Free Society

The Growing Problem of Extra-AUMF Threats

Thursday, September 30, 2010

Nine years after it was enacted in response to the September 11 attacks, the Authorization to Use Military Force (AUMF) remains the primary basis for detaining and targeting terrorists who threaten the United States.  The AUMF, however, authorizes force only against the “nations, organizations, or persons” connected to the 9/11 attacks.  In its first filing on detention last year, the Obama administration interpreted the President’s AUMF detention authority to extend to “persons who were part of, or substantially supported, Taliban or al-Qaida forces, or associated forces ….”  The administration has not relied on the “support” prong much, but has instead mostly argued that detainees are “part of” al Qaida or the Taliban, or part of “associated forces,” which (as Curtis Bradley and I have argued, and as some courts have accepted) can be equated with co-belligerency.  So, for example, the government’s brief in al-Aulaqi asserted that al-Qaeda in the Arabian Peninsula “is an organized armed group that is either part of al-Qaeda, or is an associated force, or co-belligerent, of al-Qaeda ….”

Continue reading Jack Goldsmith at Lawfare