Super Legal: Law’s Extrajudicial Authority in the Case of the AUMF

• In Event: Poster Session - Law and Courts & Federalism and Intergovernmental Relations
  In Poster Session: Poster Session - Law and Courts

Abstract

What is the role of the law in the War on Terror? More specifically, what does the AUMF do in enabling military action? The Authorization for Use of Military Force (AUMF) provides legal grounds for military acts in the War on Terror, broadly defined. Signed into law by George W. Bush on September 18, 2001 in the wake of the September 11 attacks, the AUMF remains in place today and has been used to justify military action in a number of countries—including. Iraq, Afghanistan, Syria, Pakistan, Somalia, and Yemen. The law, barely one page in length, provides US presidents broad discretion in the use of military force without prior consultation of Congress. Under this law, the National Security Agency also has the power to conduct surveillance at home and abroad.

In this paper, I investigate how the AUMF operates in exerting extrajudicial authority in military actions of the War on Terror. Existing studies often discus the purview of the AUMF in enacting military actions, but they do not address the possibility of the AUMF’s extrajudicial authority as informed by legal interpretations of the Office of Legal Counsel (OLC). The AUMF is a text and a mode of claim-making, creating a space for the OLC to explore constitutional justification for military actions through legal interpretations. Its claim-making practices demonstrate the ways in which war conducting authority is cultivated by political power but in a legalized form. An effort of the OLC in legalizing military acts indicates a form of authority that is neither entirely political nor entirely statutory, but extrajudicial. In analyzing this extrajudicial authority embedded in the AUMF, I pay particular attention to nonjusticiability that the AUMF invokes in court adjudication.

The debate on war powers finds its origin in the Constitutional debate among the Framers. This debate understands that the war powers have two sources: One is the legislative power enacted by congressional endorsement. The other is the presidential power inherent in the position of commander in chief. In this frame, the AUMF is often translated as an emergency measure to empower the president as opposed to legislative authority. Legal and political critiques of the AUMF tend to focus on the limited scope of this law and how it is violated by the abuse of presidential or executive power. For example, Tim Kaine, a Virginia senator, argues that the strikes on Syria in April 2017 reached the threshold of an act of war, breaching the scope of what the AUMF legally allows. This observation is shared by many scholarly works that point out the AUMF’s limit in initiating a war and the executive body’s over-stretch in the usage of the AUMF in justifying its never-ending conflicts.

However, the practices of OLC suggest a different aspect of the AUMF. The OLC designs legal justification for military actions undertaken under the auspices of the AUMF, often offering very creative legal interpretations. These interpretations produce legal grounds for further military actions as well as ex-post justifications. This elastic ground of legality suggests that a source of war powers cannot be subsumed entirely to either statutory power or political power. On the one hand, if the AUMF has a legal and statutory power, laying out the statute would be enough. On the other hand, if the AUMF triggers political power to wage wars, the OLC would not need to be creative in persuading the legitimacy of war powers. It may expedite the process by omitting the process of legal justification. And yet, legal justification for the use of military force in the War on Terror is one of the major battle fields.

The case of Smith v. Trump epitomizes this battle. Nathan Smith, a captain in the US Army, filed litigation against the U.S. President arguing that the President violated the constitution by conducting a war without Congressional authority. He claims that the AUMF does not grant sufficient authority to conduct a war. The Court’s decision on this case says that it is nonjusticiable, claiming political question doctrine. Basically, the Court gives up jurisdiction over the law – the AUMF – saying that it is a political issue. However, the AUMF is a law as well. This creates a nonjusticiable space within the law. In other words, a political space within the law that the law cannot touch.

This authority I try to sketch out is distinguished from the legislative power derived from the Constitution and from the executive or presidential power that is political by nature. Rather, this emerging source of authority that enables military operations abroad and at home shows the ways in which security practices take a legalized form, but they are not subject to the court’s jurisdiction. The D.C. Circuit’s decision on Smith v. Trump indicates this emerging terrain of authority that is not entirely attributed to the Court’s juridical power although it takes a form of law.

Author

• Hye Yun Kang, Ohio State University