Senators Joe Lieberman (I-CT) and Kelly Ayotte (R-NH) had a very good op-ed in the Washington Post this week, protesting the Obama administration’s treatment of Somali terrorist Ahmed Abdulkadir Warsame.
Warsame is a member of al-Shabab, which has a working relationship with al Qaeda (particularly its Yemen-headquartered outpost, al Qaeda in the Arabian Peninsula, or AQAP). He was captured aboard a ship in the Gulf of Aden in April, and is believed to have been training AQAP (which targets the United States) in the use of firearms and explosives. After detaining him for two months on a navy vessel (i.e., seemingly as an enemy combatant), the Obama administration whisked Warsame into the U.S. about three weeks ago. The plan is to give him a civilian trial — meaning that Warsame, a Somali whose only connection to our country is to levy war against us from the east coast of Africa, will be vested with all the rights of an American citizen, including our civilian system’s lavish discovery rights for criminal defendants.
Sens. Lieberman and Ayotte are right to argue that this is reckless. The nation is at war, and our enemies should be treated as enemy combatants, not common criminal defendants. They should be held at Guanatanamo Bay, a first-rate facility where they can be interrogated without counsel and where they (and confederates who would plot to try to break them out) pose no threat to the American people. In the absence of some new system designed to deal with the unique challenges of terrorism, they should be tried by military commission — a constitutional process enacted by Congress and endorsed by Presidents Bush and (at least ostensibly) Obama.
But now we get to a big problem, one I pointed out when a Pakistani Taliban operative, Faisal Shahzad, tried to bomb Times Square last year. The Authorization for the Use of Military Force (AUMF) enacted by Congress days after the 9/11 attacks is now nearly a decade old. It has never been updated. The enemy in the war on terror has to be described with specificity in the legislation by which Congress targets combat operations. If it is not, then we run into the problem critics on the right and the left have warned about from the start: an amorphous, never-ending “war” in which legal protections owed to Americans and non-enemies are steadily degraded.
As presently written, the AUMF confines the enemy to those complicit in the 9/11 atrocities — “nations, organizations, or persons [determined by the President to have] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” These are the only persons/entities that the AUMF permits to be treated as enemy combatants. Liberties have been taken with this narrow definition on the ground that it goes on to say that military force is authorized against these persons/entities “in order to prevent any future acts of international terrorism against the United States[.]” But this only states the reason military force is authorized — it does not expand the circle of enemy combatants beyond those complicit in 9/11 (a fact that is underscored by the AUMF’s repetition that we are only trying to prevent anti-U.S. terrorism “by such nations, organizations or persons” who were complicit in the 9/11 attacks).
The problem is that organizations like Shabab, AQAP, and the Pakistani Taliban arguably either did not exist at the time of the 9/11 attacks or had no real involvement with them — their cooperation with the enemies specified by the AUMF happened well after 9/11. (Indeed, the AUMF aside, we’ve even had trouble getting the Taliban designated as a terrorist organization.)
Congress needs to update the AUMF to reflect the present reality of the war and include all the nations, organizations and persons who are and have been fighting in allegiance with al Qaeda, the Taliban, their state sponsors (e.g., Iran), and their global affiliates. If Congress continues to neglect this significant aspect of its power and duty to authorize warfare, the Obama administration will continue to have a valid legal basis to treat our wartime enemies as mere criminals — and, perversely, to reward their barbarism with gold-plated due process.
Relatedly, my column this weekend is about the administration’s treatment of Ali Mussa Daqduq, a Hezbollah commander who, at Iran’s urging, set up the Shiite terror network in Iraq that killed (and continues to try to kill) Americans serving there. The administration wanted to give him, too, a civilian trial, and now appears poised to release him if that’s what’s necessary to avoid detaining him at Gitmo and trying him by military commission.
I think Daqduq presents a slightly different legal situation than Warsame because (a) Hezbollah is different from Shabab, and (b) in addition to the aforementioned AUMF, the war in Iraq is also covered by a separate AUMF that gives the president leeway to “defend the national security of the United Staes against the continuing threat posed by Iraq.” Hezbollah (like its masters in Iran) had a long history of pre-9/11 aid to al Qaeda. Moreover, the 9/11 Commission suggested that it may have been directly complicit in the 9/11 plot, and it helped harbor al Qaeda members post 9/11. Thus, Hezbollah and its operatives may be deemed enemy combatants under both the original AUMF and the Iraq AUMF. But there is no reason not to make that explicit. An amended AUMF should expressly include Hezbollah and Iran (which our commanders, again and again, have cited as training and arming the terrorist organizations we are fighting).