Bradley, Goldsmith - 2005 - Rejoinder the War on Terrorism International Law, Clear Statement...

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Rejoinder: The War on Terrorism: International Law, Clear Statement Requirements, andConstitutional DesignAuthor(s): Curtis A. Bradley and Jack L. GoldsmithReviewed work(s):Source: Harvard Law Review, Vol. 118, No. 8 (Jun., 2005), pp. 2683-2697Published by: The Harvard Law Review AssociationStable URL: http://www.jstor.org/stable/4093430 .

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2684 HARVARD LAW REVIEW [Vol. 18:2683ecutive Branch in addressing the complex and sometimes novel issuesin the war on terrorism, and to stimulate academic discussion of Con-gress's important enactment. The latter goal is well served by thethree Replies to Congressional Authorization in this issue of the Har-vard Law Review.

Although each of the Replies approaches the AUMF from a differ-ent perspective, none expresses fundamental disagreement with ourframework. Professors Goodman and Jinks describe our framework as"useful," but maintain that we have understated the importance of theinternational laws of war within the framework.5 Professor Sunsteinargues that administrative law should play a greater role than we sug-gested, and the international laws of war a less substantial role. Healso advocates a broader clear statement requirement.6 Otherwise, heapproaches the AUMF in ways similar to Congressional Authorization,and reaches similar conclusions. Professor Tushnet suggests that oursis a reasonable approach to interpreting the AUMF, but he maintainsthat its very reasonableness demonstrates the danger of relying onCongress to police executive power during wartime, and suggests thatthe only solution may be a constitutional amendment.7Below, we address three issues raised by these Replies: first, theproper role of the international laws of war in the interpretation of theAUMF; second, the circumstances in which a clear statement require-ment is appropriate in ascertaining the scope of the AUMF; and third,the implications of our analysis for the ability of the current constitu-tional system to ensure optimal tradeoffs between liberty and securityduring war.

I. THE AUMF AND THE INTERNATIONAL LAWS OF WARCongressional Authorization argued that, in broadly authorizingthe President to use "all necessary and appropriate force," Congressimplicitly authorized actions permitted under the international laws ofwar. It also argued that, because the laws of war can inform the scopeof Congress's authorization, they can also inform limitations on thatauthorization. Absent textual or other evidence to the contrary, there-fore, the AUMF should not be viewed as authorizing presidential ac-tions in violation of the laws of war.8 As a result, such actions would

5 See Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the GlobalWar on Terrorism, ii8 HARV. L. REV. 2653 (2005).6 See Cass R. Sunstein, Administrative Law Goes to War, I18 HARV. L. REV. 2663 (2005).7 See Mark Tushnet, Controlling Executive Power in the War on Terrorism, ii8 HARV. L.REV. 2673 (2005).8 For reasons explained in Congressional Authorization, we limited this claim to jus in bellorules of international law that govern the conduct of war and did not extend the claim to jus ad


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2005] THE WAR ON TERRORISM 2685be valid only if they fell within the independent constitutional author-ity of the President.Professor Sunstein and Professors Goodman and Jinks take differ-ent, and conflicting, positions on the proper role of the internationallaws of war in our framework. While Professor Sunstein suggests thatCongressional Authorization overstates the importance of the laws ofwar,9 Professors Goodman and Jinks contend that Congressional Au-thorization "systematically understate[s] the interpretive significance"of this body of law.10 We address these positions in turn.

A. RelevanceIn suggesting that the international laws of war should play a lesssignificant role than the one we proposed in Congressional Authoriza-tion, Professor Sunstein states that "it is best to start with statutorytext and more familiar administrative law principles.""1We agree withthe beginning of this statement. The first two substantive parts ofCongressional Authorization focus on the text of the AUMF, its draft-ing history, and its relationship to past authorizations of force.12 Wedisagree, however, with Professor Sunstein's suggestion that "adminis-trative law principles," particularly the Chevron doctrine, have logicalpriority over the international laws of war. As Professor Sunstein ob-serves, Chevron deference is triggered only after a court determines,using the appropriate tools of statutory construction, that the statutory

provision under consideration is silent or ambiguous.13 The interna-tional laws of war are one such tool for interpreting the AUMF andtherefore would properly be considered under the first step of theChevron doctrine, assuming, as Professor Sunstein contends, that doc-trine applies to the AUMFThe international laws of war reflect widely accepted backgroundnorms, relating to the very subject of the authorization (the use offorce in international relations), against which Congress legislated.14In addition, there is a long tradition of both courts and presidents rely-

bellum rules governing when nations can use force. See Bradley & Goldsmith, supra note I, at2089-91.9 See Sunstein, supra note 6, at 2664.10 Goodman & Jinks, supra note 5, at 2653.11 Sunstein, supra note 6, at 2664 n.7.12 See Bradley & Goldsmith, supra note i, at 2056-83.

13 See Sunstein, supra note 6, at 2665; see also Gen. Dynamics Land Sys., Inc. v. Cline, 124 S.Ct. 1236, 1248 (2004); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843n.9 (1984).

14 See Bradley & Goldsmith, supra note I, at 2091-92; cf Sunstein, supra note 6, at 2664 n.7(noting that the laws of war might "furnish a set of principles, vindicated by tradition, againstwhich authorizations for the use of force should be understood").


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2686 HARVARD LAW REVIEW [Vol. 118:2683ing on the laws of war to inform the President's wartime powers.isThis consistent understanding during wartime is an especially relevantsource of meaning because the AUMF purports to authorize presiden-tial action in an area of concurrent presidential authority.16 Followingin this tradition, the Supreme Court plurality in Hamdi properlylooked to the laws of war in ascertaining the "necessary and appropri-ate"force that Congress authorized in the AUMF.'7We believe that Professor Sunstein's resolution of the six hypotheti-cals that he poses at the outset of his Reply would be more nuancedand persuasive if he looked to the international laws of war in inter-preting the AUMF. For example, Professor Sunstein states that thePresident's ability to use force against entities that have assisted alQaeda only after the September i i attacks poses a "difficult" ssue, buthe does not attempt to resolve it.18 As we explained in CongressionalAuthorization, the international law principles concerning co-belligerency provide useful guidance in resolving this issue.19 In addi-tion, Professor Sunstein simply asserts that the killing of an Americancitizen at a U.S. airport would not be a necessary and appropriate useof force under the AUMF.20 The international law rules concerningthe use of force against unarmed and nonthreatening combatants, by

15 See Bradley & Goldsmith, supra note I, at 2091-92.16 See id. at 2086 n.I60, 2100.17 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2641 (2004) (plurality opinion).18 Sunstein, supra note 6, at 2667 & n.31.19 See Bradley & Goldsmith, supra note i, at 2112-13. The text of the AUMF also providesmore guidance than suggested by Professor Sunstein. He states that we emphasize that "thePresident could not use force against nations or individuals that cannot plausibly be connectedwith the attacks of September II, 2001." Sunstein, supra note 6, at 2667 (emphasis added). Thisdescription omits the AUMF's reference to "organizations"with a connection to the September i iattacks. Authorization for Use of Military Force, ? 2(a), Pub. L. No. 107-40, 115 Stat. 224, 224(2001). As Congressional Authorization explained, terrorist organizations with an adequatelyclose post-September i i connection to al Qaeda can properly be deemed part of an organizationresponsible for the attacks. See Bradley & Goldsmith, supra note i, at 2110-12. The interna-tional law co-belligerency standard is relevant only as a guide for determining the adequacy of theconnection. See id. at 2112.

20 See Sunstein, supra note 6, at 2668. It is unclear from Professor Sunstein's treatment of hishypotheticals how he views the "necessaryand appropriate" anguage in the AUMF. For example,although he views that language as precluding the use of excessive force in his hypothetical con-cerning the killing of a U.S. citizen at a U.S. airport, he does not impose such a restriction on ex-cessive force in resolving the other hypotheticals, such as his hypotheticals about invading Iraqbased on the AUMF or detaining French citizens who provide financial support to organizationsthat support al Qaeda. See id. at 2667-68. As we explained in Congressional Authorization, wedo not believe that Congress intended the phrase "necessary and appropriate" to operate as anindependent textual restriction beyond its possible implicit reference to prior Executive Branchpractice and the laws of war. See Bradley & Goldsmith, supra note I, at 2081-82.


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2005] THE WAR ON TERRORISM 2687contrast, provide more principled and refined justifications for hisconclusion.21

B. SignificanceProfessors Goodman and Jinks agree with us that the laws of warare relevant to interpreting the AUMF, but they contend that we haveunderstated their significance.22 First, they argue that the laws of warlimit the class of individuals who can be subjected to the use of forcemore substantially than we suggested. Second, they argue that thePresident's power to detain enemy combatants is subject to a broaderarray of international law conditions than we suggested.I. Individuals Covered by the AUMF. - Congress in the AUMFauthorized the use of force against "organizations" connected to theSeptember i i attacks,23 which uncontroversially includes al Qaeda.In Congressional Authorization, we argued that, when it is unclearwhether an individual is a member of an organization covered by theAUMF, the law-of-war criteria for combatancy can help resolve the is-sue. For example, because international law treats civilians who "di-rectly participate"in hostilities as combatants who can be targeted anddetained, persons who directly participate in al Qaeda's terrorist ac-tivities against the United States should be viewed as covered by theAUME24Professors Goodman and Jinks argue that the direct participationstandard is not merely a relevant consideration, it is the only relevantconsideration.25 Under their analysis, the President would not havestatutory authority to use force against or detain members of al Qaedaunless those members had directly participated in hostilities againstthe United States.26 They also suggest that many (and perhaps most)

21 See Bradley & Goldsmith, supra note i, at 2120-21 n.325.22 See Goodman & Jinks, supra note 5, at 2653.23 See Authorization for Use of Military Force, ? 2(a), I15 Stat. at 224.24 See Bradley & Goldsmith, supra note i, at 2115-16.25 See Goodman &Jinks, supra note 5, at 2655, 2657.26 Professors Goodman and Jinks overstate matters in claiming that the direct participationstandard is "precise," d. at 2655, and suffers from only "modest. . . definitional squabbles,"id. at2656. In its recent study on customary international law related to the laws of war, the Interna-tional Committee of the Red Cross (ICRC), an organization expert in the laws of war and not un-duly cautious about embracing progressive developments in customary international law, notedthat "[a]precise definition of the term 'direct participation in hostilities' does not exist." I JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, INT'L COMM. OF THE RED CROSS,CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 22 (2005); see also id. (noting that statepractice "gives little or no guidance on the interpretation of the term 'direct participation'"). U.S.military and academic commentators have similarly noted the unsettled nature of this standard.See, e.g., Michael E. Guillory, Civilianizing the Force: Is the United States Crossing the Rubi-con?, 51A.F. L. REV. III, 116-20 (2001); Lisa L. Turner & Lynn G. Norton, Civilians at the Tipof the Spear, 5I A.F. L. REV. I, 28 (20o01).


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2688 HARVARD LAW REVIEW [Vol. 118:2683members of al Qaeda do not meet this direct participation require-ment.27As an initial matter, although Professors Goodman and Jinks pur-port to rely on international law only for its "interpretive significancefor the AUMF,"28heir analysis loses sight of the AUMF. The class ofindividuals subject to the AUMF is not, as they suggest, a free-floatingquestion of international law. The AUMF expressly authorizes the useof force "against those ... organizations" responsible for "the terroristattacks that occurred on September 11, 2OOI,"'29 a description that, asnoted above, includes al Qaeda. As a result, individuals who are un-controversially part of that organization - because, for example, theyadmit to being members, or because they carry out orders in the or-ganization's chain of command - are covered by the AUMF regard-less of whether they satisfy the direct participation standard.30Even if it were proper to disregard the AUMF's text, ProfessorsGoodman and Jinks's insistence that direct participation is the onlycriterion for combatant status in the armed conflict against al Qaedaand related terrorist organizations is unsupported by the materials theycite and is inconsistent with standard assumptions underlying the lawsof war. They assert that, under the laws of war, military force may beused against only two categories of individuals - lawful combatantsand unlawful combatants - and, more importantly, that the lattercategory is limited to civilians who directly participate in hostilities.3'As a result, Professors Goodman and Jinks contend that becausemembers of al Qaeda do not qualify as lawful combatants, they arepresumptively civilians and the United States cannot use force againstthem unless they directly participate in hostilities against the UnitedStates.32 Like any syllogism, the validity of this argument depends onits premise, and the premise here - that in an armed conflict betweena state and a terrorist organization, the members of the terrorist or-ganization are deemed civilians unless they directly participate in hos-tilities - is flawed. The only support Professors Goodman and Jinksoffer for this premise is Article 51 of the First Additional Protocol to

27 See Goodman &Jinks, supra note 5, at 2657-58.28 Id. at 2654 n.5.29 Authorization for Use of Military Force, Pub. L. No. 107-40, ? 2(a), 115 Stat. 224, 224(2001).30 See Bradley & Goldsmith, supra note i, at 2114-15. The authorization to use force against"nations"would not imply an authority to use force against all members of a nation because theinternational laws of war as applied to interstate conflicts specifically limit the use of force to anation's armed forces and related direct participants in the war, and affirmatively immunize fromattack civilian non-combatants. By contrast, international law does not specifically limit the useof force to only a subset of a militant terrorist organization, especially an organization that, like alQaeda, has as its defining purpose the waging of illegal war.31 See Goodman & Jinks, supra note 5, at 2655.32 See id. at 2657-58.


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2005] THE WAR ON TERRORISM 2689the Geneva Conventions.33 The United States, however, has not rati-fied that Protocol. Moreover, Article 51 does not state that everyoneother than lawful combatants must be classified as civilians, let alonethat members of a terrorist organization must be so classified. Rather,it merely states that civilians should receive certain protections "unlessand for such time as they take a direct part in hostilities."34Professors Goodman and Jinks's approach is also inconsistent withstandard assumptions underlying the laws of war. It is widely recog-nized that a nation involved in an armed conflict is permitted underthe laws of war to use force against most of the enemy's armed forces,regardless of whether those forces meet the direct participation stan-dard.35 By contrast, Professors Goodman and Jinks would disallowthe use of force against most members of al Qaeda, even though alQaeda is a military organization dedicated to waging illegal war. Un-der their proposed approach, al Qaeda military recruits training in Af-ghanistan could not be targeted or detained because these members ofal Qaeda have not yet directly participated in hostilities.36 Indeed,Professors Goodman and Jinks's analysis could lead to the absurd con-clusion that even Osama bin Laden could not be targeted or detained,since, while he is the leader of al Qaeda, it could be argued that he hasnot directly participated in hostilities (or is no longer participating inthem).37 In sum, Professors Goodman and Jinks's approach to armedconflicts would confer substantially more immunity from attack anddetention on unlawful combatant groups than on the lawful armed

33 See id. at 2655 nn.6-7.34 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Pro-tection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, art. 51(3),1125 U.N.T.S. 3, 26. The sources that Professors Goodman and Jinks cite concerning the scope ofthe direct participation test, see Goodman & Jinks, supra note 5, at 2655-57 nn.8-28, do not sug-gest that members of terrorist groups must be treated in an armed conflict as non-combatantsunless they meet the test. Rather, these sources focus on the questions whether and when tradi-tional civilian non-combatants can be deemed combatants because they directly participate in anarmed conflict.

35 See Bradley & Goldsmith, supra note i, at 2114 & n.3oo; see also, e.g., YORAM DINSTEIN,THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMEDCONFLICT27 (2004) (noting that "[m]embersof the armed forces of a belligerent Party (exceptmedical and religious personnel)" are considered combatants "even if their specific task is notlinked to active hostilities" (citation omitted)); Knut Ipsen, Combatants and Non-Combatants, inTHE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 65, 66 (Dieter Fleck ed., I995)("[F]ormembers of the armed forces combatant status is the rule, while the classification of non-combatant status is an exception.").36 See Goodman & Jinks, supra note 5, at 2657 (noting that "training"is not direct participa-tion (quoting W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination,ARMYLAW.,Dec. 1989, at 9 app. C)).37 Cf id. (articulating the direct participation test and concluding that "members[of the terror-ist group] conducting 'local intelligence, intermediate logistics, recruiting, [and] training' wouldretain their status as noncombatants" (second alteration in original) (quoting Parks, supra note 36,at 9 app. C)).


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2690 HARVARD LAW REVIEW [Vol. 118:2683forces of enemy nations - a result directly at odds with the usual as-sumptions of the laws of war and with common sense.382. International Law Conditions. - Professors Goodman andJinks also claim that we have understated the extent to which interna-tional law imposes conditions on the President's authority to detainenemy combatants. In Congressional Authorization, we argued thatthe President's violation of the laws of war would not negate authorityotherwise implicitly conferred by the AUMF (such as the power to de-tain enemy combatants) unless the law-of-war rule in question were acondition, under international law, of that authority.39 ProfessorsGoodman and Jinks agree with this claim, but they contend that therewill be a wide range of international law conditions that might berelevant to actions taken under the AUMF.

Congressional Authorization did not purport to make a quantita-tive assessment of the number of international law rules that are, orare not, conditions. We did argue, and Professors Goodman and Jinksdo not appear to dispute,40that Article 5 of the Third Geneva Conven-tion (which calls for hearings before competent tribunals when there isdoubt about whether a captured belligerent qualifies as a prisoner ofwar41) is not framed as a condition on the power to detain.42 We alsosuggested that several other provisions in the Third Geneva Conven-tion, such as access to a canteen, should not be viewed as conditionson the detention power,43 but we made no other specific claims. As aresult, although Professors Goodman and Jinks phrase this portion oftheir Reply as if it were a disagreement with our analysis, the basis fortheir disagreement is unclear.Without engaging in a point-by-point assessment of the variousrules they cite, we would emphasize that the rules must actually applyto terrorist combatants for them to operate as conditions on presiden-tial action under the AUMF. Yet Professors Goodman and Jinks neverestablish that the various international law rules they cite actually doapply in the conflict between the United States and terrorists coveredby the AUMF. For example, they assume without any argument or

38 Cf. A.P.V. ROGERS, LAW ON THE BATTLEFIELD 33 (2d ed. 2004) (noting that "there is astrong argument that if a person belongs to a group of guerrilla fighters that carries out attacks onopposing armed forces," and the group does not conduct its operations in accordance with thelaws of war, "he may be considered to have forfeited his civilian status for the duration of hismembershipof, or participation in the actions of, that group"(emphasis added)).39 See Bradley & Goldsmith, supra note i, at 2094-96.40 See Goodman &Jinks, supra note 5, at 2660 n.39.41 See Geneva Convention Relative to the Treatment of Prisoners of War of August 22, I949,opened for signature Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 3322-24, 75 U.N.T.S. I35, I4o-42 [here-inafter Third Geneva Convention].

42 See Bradley & Goldsmith, supra note I, at 2095-96.43 See id. at 2095.


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2005] THE WAR ON TERRORISM 2691

qualification that the Third Geneva Convention (governing the treat-ment of prisoners of war) and the Fourth Geneva Convention44 (gov-erning the treatment of "civilians") apply in this conflict.45 The basisfor this assumption is never specified, and in the unqualified fashion inwhich it is suggested by Professors Goodman and Jinks it is very likelywrong. Among other things, Common Article 2 of these Conventionsappears to preclude their applicability to conflicts with non-state ter-rorist organizations. It provides that the Geneva Conventions "shallapply to... any.., .armed conflict which may arise between two ormore of the High Contracting Parties."46 Al Qaeda is not a state,much less a high contracting party to the Geneva Conventions. Com-mon Article 2 also applies the Geneva Conventions to a non-partyPower that "accepts and applies the provisions thereof."47 It is doubt-ful that al Qaeda is a "Power" within the meaning of Common Article2, but even if it were, it does not accept and apply the Conventions.48For these reasons, the President appears to have correctly concludedthat al Qaeda is not a party to the Third Geneva Convention and istherefore not covered by it.49

44 GenevaConventionRelative o the Protection f CivilianPersonsn Time of Warof August12, 1949, openedfor signature Aug. 12, 1949, art 79, 6 U.S.T. 3517, 75 U.N.T.S. 287.45 See Goodman&Jinks,supranote5, at 2659-61.46 Third Geneva Convention, supra note 41, art. 2, 6 U.S.T. at 3318, 75 U.N.T.S. at 136 (em-phasisadded).47 Id.48 Nor does it matter, orpurposesof CommonArticle2, that al Qaedamayhave beenfight-ing in conjunctionwith theAfghanTaliban orces,who we canassume as PresidentBushdeter-mined)are coveredby theGenevaConventions.CommonArticle2 statesthat, "[a]lthoughneofthe Powers n conflictmaynot be a partyto the presentConvention,he Powerswhoarepartiestheretoshallremainboundby it in theirmutualrelations." d. Thisprovisionmakesclearthatevenwhen two statesfight togetheragainsta third statein a traditional rmedconflict, he thirdstate is boundby the GenevaConventions nlyvis-a-visthe enemy hatis a party o the GenevaConventions,not with respectto the enemythat is not a partyto the Conventions. See, e.g.,MORRISGREENSPAN,HE MODERNLAWOFLANDWARFARE8, 97 (I959);HOWARD.LEVIE,PRISONERSFWAR NINTERNATIONALRMEDCONFLICTS4-25(U.S.NavalWarColl.,Int'lLawStudiesVol.59, I979). At a minimum,he samerule shouldapplywhenthenon-partyarmed orcesare members f a terrorist rganization.In addition,al Qaedaprobably an-not benefit fromArticle4 of the Third GenevaConvention,which providesthat militiasandothervolunteer orps hat"belong[]o a Party o the conflict" anqualifyas prisoners f warun-der the Conventionf they satisfythe four traditionalprerequisitesor lawful combatancy.SeeThird Geneva Convention, supra note 41, art. 4(a)(2), 6 U.S.T. at 3320, 75 U.N.T.S. at 138. Be-cause it is unlikely hat al Qaeda"belongso"Afghanistanwhich s a Partyto the conflict),oneneednot even reach he issue whether t has satisfied he fourtraditional riteria which,as Pro-fessorsGoodman ndJinksacknowledge,t almostcertainlyhasnot,see Goodman&Jinks,supranote 5, at 2657).

49 See Officeof the WhiteHouse PressSec'y,FactSheet:Statusof Detaineesat Guantanamo(Feb. 7, 2002), http://www.whitehouse.gov/news/releases/2oo2/o2/2oo2o2o7-13.html.rofessorsGoodmanandJinks suggestthat PresidentBush has "determine[d]hat [thelaw of armedcon-flict]is inapplicableo the conflict" gainst errorists ndthatthe ExecutiveBranch s not usingthe law-of-warramework.Goodman&Jinks,supranote5, at 2659n.35. Infact,PresidentBush


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2692 HARVARD LAW REVIEW [Vol. 118:2683

II. CLEAR STATEMENT REQUIREMENTCongressional Authorization analyzed at length when a clear

statement requirement would be appropriate in interpreting theAUMF.s5 It concluded that a clear statement requirement is war-ranted for presidential wartime actions that restrict the liberty of non-combatants in the United States, but not for presidential actions thatrestrict the liberty of combatants.51Professor Sunstein proposes a different clear statement require-ment. Specifically, he contends that, although the President should re-ceive Chevron deference when he interprets the AUMF, "if the Presi-dent is infringing on constitutionally sensitive interests, the AUMFmust be construed narrowly, whatever the President says."52 He alsoclaims that, in interpreting the AUMF, "liberty should always receivethe benefit of the doubt."53In our view, this formulation is overly broad and indeterminate. Itis unclear what the phrase "constitutionally sensitive interests" (andthe related phrases that Professor Sunstein uses in his Reply54) entails.For example, Professor Sunstein does not explain whether his clearstatement requirement is limited to constructions of the AUMF thatviolate constitutional rights, or whether it also applies to constructionsthat raise constitutional questions or, even more broadly, to construc-tions that implicate constitutional values. It is also unclear what Pro-fessor Sunstein means by "liberty."55Most presidential actions underthe AUMF will affect liberty, and many of these actions might also af-fect constitutionally sensitive interests, especially if they are directedagainst U.S. citizens. For example, if the President orders the bombingor detention of enemy combatants covered by the AUMF in Afghani-stan, that action will have a significant effect on the liberty of thosecombatants and may (especially if they are U.S. citizens) implicate con-stitutionally sensitive interests. Yet we doubt that Professor Sunsteinsimply determined that the Third Geneva Convention did not apply to the conflict with al Qaedaand that Taliban detainees did not qualify under the Convention for prisoner-of-war status. SeeOffice of the White House Press Sec'y, supra; see also William H. Taft, IV, The Law of ArmedConflict After 9/II: Some Salient Features, 28 YALE J. INT'L L. 319, 320 (2003) (then-Legal Ad-viser to the U.S. State Department stating that "[t]hebody of the law of armed conflict would thusapply - and, from a U.S. perspective, there was never a question of not applying the law, or ofstepping away from international rules").50 See Bradley & Goldsmith, supra note i, at 2 102-o6.51 See id. at 2io6.52 Sunstein, supra note 6, at 2664 (emphasis added).

53 Id. at 2672.54 Professor Sunstein uses a variety of formulations for his clear statement test, and it is notclear whether the different formulations all have the same meaning. Compareid. at 2664 ("consti-tutionally sensitive interests"),with id. at 2669 ("constitutionally protected interests"),and id. at2672 ("constitutionallysensitive rights").55 See id. at 2668-70.


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2005] THE WAR ON TERRORISM 2693believes Congress should be required to enact additional legislationbeyond the AUMF before the President could bomb or detain enemycombatants in Afghanistan. Indeed, the Court in Hamdi implicitlyheld that such additional legislation was unnecessary.56Congressional Authorization argued that the relevant precedentsupports a more precise trigger for the clear statement requirement:the requirement should apply when presidential actions under theAUMF restrict the liberty of non-combatants in the United States, butnot when they restrict the liberty of combatants.57 The SupremeCourt in Duncan v. Kahanamoku58and Ex parte Endo59 applied aclear statement requirement in the context of presidential actionsagainst civilian non-combatants, but suggested that the same require-ment would not apply if the President engaged in traditional militaryfunctions against combatants.60 By contrast, in Ex parte Quirin,61 theCourt did not apply a clear statement requirement, even though thecase involved the detention and trial of a U.S. citizen - practices thatrestricted liberty and presumably implicated constitutionally sensitiveinterests. Similarly, the plurality in Hamdi did not purport to apply aclear statement requirement, even though the case involved the deten-tion of a U.S. citizen in the United States.62 The central difference be-tween Duncan and Endo on the one hand, and Quirin and Hamdi onthe other, is that the latter cases involved actions taken againstcombatants.

56 See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2640-42 (2004) (plurality opinion) (interpreting theAUMF as authorizing detention of U.S. citizen enemy combatants captured in Afghanistan).57 See Bradley & Goldsmith, supra note i, at 2105-o6.58 327 U.S. 304 (1946).59 323 U.S. 283 (i944).60 See Duncan, 327 U.S. at 310; Endo, 323 U.S. at 300-04; see also Bradley & Goldsmith, su-

pra note I, at 2 04-o5. Professor Sunstein also relies on a district court decision by JudgeLearned Hand, Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917). See Sunstein, supranote 6, at 2669. In Masses, the court held that in the absence of specific congressional authoriza-tion, the Executive Branch could not interfere with U.S. mail in an effort to stop antiwar propa-ganda during World War I. 244 F. at 536, 539-41, 543. This decision is consistent with our posi-tion that a clear statement requirement is appropriate during wartime when the President takesaction to restrict the liberty of non-combatants in the United States. It is also worth noting thatthe relevant government actor in Masses was the Postmaster General, whose authority, the courtnoted, was entirely derived from statute. Id. at 538 ("Thedefendant's authority is based upon theact of Congress, and the intention of that act is the single measure of that authority."). The deci-sion therefore does not speak to situations in which the President is acting pursuant to independ-ent constitutional authority.61 317 U.S. I (1942).62 Professor Sunstein asserts that the plurality implicitly and correctly found in the AUMF aclear statement authorizing detention of U.S. citizens, see Sunstein, supra note 6, at 2670, but hisinterpretation of the plurality opinion can only be sustained if one adopts a weak version of theclear statement requirement - so weak, in fact, that it is not apparent what work the clearstatement requirement is doing. The AUMF, after all, does not even refer to detention, let alonethe detention of U.S. citizens, which was the presidential action at issue in Hamdi.


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2694 HARVARD LAW RE VIEW [Vol. II8:2683in sum, the clear statement requirement outlined in CongressionalAuthorization provides better guidance to courts and the ExecutiveBranch than the one proposed by Professor Sunstein, and is consistent

with Hamdi and prior Supreme Court decisions regulating presidentialpower during wartime.III. CONSTITUTIONAL DESIGN

Professor Tushnet suggests that our framework is premised on aseparation-of-powers model for supervising presidential power, bywhich he means that it assumes that Congress is the primary agent forpolicing Executive Branch wartime action and ensuring that thePresident makes optimal wartime tradeoffs between liberty and secu-rity. He contends that the framework "indirectly challenge[s] the ade-quacy" of this model because it shows that the AUMF can reasonablybe interpreted to authorize actions in the United States that threatenthe liberties of U.S. citizens.63 He also expresses doubt about whetherthe principal alternative model - a judicial-review model in whichcourts are charged with controlling political branch excesses duringwartime - is any better, given the tendency of courts to defer to thepolitical branches.64 He concludes his Reply by suggesting the possi-bility of amending the Constitution in order to address the problem ofprotecting liberty during wartime.65Professor Tushnet's questions about constitutional design, whilethought-provoking, are beyond the scope of our project. Ultimately,Congressional Authorization is about how to interpret the AUMFwithin the context of our current constitutional system, not how to de-sign a system that would best regulate the conduct of war. We do,however, have several observations about Professor Tushnet's analysis.First, Professor Tushnet appears to overstate the dichotomy be-tween the separation-of-powers and judicial-review models. Thesemodels have never been mutually exclusive means of regulating presi-dential action during wartime. For example, although the SupremeCourt has never invalidated a presidential wartime action that it con-cluded was authorized by Congress,66 it has sometimes exercisedsearching judicial review to conclude that a seemingly authorized Ex-

63 See Tushnet,upranote7,at 2675.64 See id. at 2679-80.65 Id. at 2680-82.66 The Court n Ex parteMilligan,7I U.S. (4 Wall.)2 (I866),stated that Congress ouldnotauthorizemilitarycommissions o try non-combatantivilianswhere civilian courts were open,id. at 121-22, but as the dissent herepointedout,this statementwas dicta becauseCongresshadin factprohibited,not authorized,he use of militarycommissions. See id. at 136 (Chase,C.J.,dissenting).


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2005] THE WAR ON TERRORISM 2695ecutive Branch action was not in fact authorized.67 The interpretivetools that the Court has employed in these cases - such as requiring aclear statement before construing a statute to authorize presidentialacts that impinge on the rights of U.S. citizen non-combatants - areimportant aspects of our framework for interpreting the AUMF.68Furthermore, the mere possibility of judicial review can have impor-tant effects on Executive Branch action, as evidenced by the ExecutiveBranch's decision to confer additional procedural rights on enemycombatants after the Supreme Court granted certiorari in Hamdi andRasul last Term and especially after the Court made clear in those de-cisions that it would exercise judicial review over the Executive's ac-tions.69

Second, we believe that Professor Tushnet's concerns stem from anunduly narrow conception of the limitations in our framework on thescope of Congress's authorization in the AUMF. He maintains thatour framework's "only operative limitation" on the AUMF is the Sep-tember ii nexus requirement.70 But Congressional Authorizationidentifies many other important limits on what Congress authorized inthe AUMF, including the international laws of war, traditional prac-tice, the clear statement requirement for action against non-combatants in the United States, and habeas corpus review, which in-cludes an independent judicial assessment of, among other things, theprocedural adequacy of presidential determinations related to the de-tention, and possibly the trial, of enemy combatants.71These factors preclude an interpretation of the AUMF that wouldauthorize Professor Tushnet's hypothetical mass detention of ArabAmerican males in the United States.72 Since the AUMF only author-izes the use of force against "nations, organizations, or persons"with aconnection to the September i attacks,73it would not authorize thedetention of Arab American males who do not have, and are not mem-bers of an organization that has, such a connection. Independent ofthis textual limitation, the hypothesized mass detention would restrict

67 Two examples are Duncan and Endo. A third example is YoungstownSheet & TubeCo. v.Sawyer, 343 U.S. 579 (1952), in which the government and the dissent argued that the Presidentwas simply taking care to execute an array of congressional statutes related to national security.See id. at 701 (Vinson, C.J., dissenting).68 See Bradley & Goldsmith, supra note I, at 21o2-o6.69 See id. at 2126-27.70 Tushnet, supra note 7, at 2675.71 See Bradley & Goldsmith, supra note I, at 2122; see also Hamdi v. Rumsfeld, 124 S. Ct.2633, 2636-39 (2004) (plurality opinion) (allowing a U.S. citizen detained in the United States asan enemy combatant to challenge the factual basis for his designation through a writ of habeascorpus).72 See Tushnet, supra note 7, at 2673.73 Authorization for Use of Military Force, Pub. L. No. Io7-4o, ? 2(a), Ii5 Stat. 224, 224(200ooI).


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2696 HARVARD LAW REVIEW [Vol. 118:2683the liberty of non-combatants in the United States, and thus shouldnot be viewed as authorized by Congress absent a clear statement.Professor Tushnet discounts these limitations, and focuses insteadon the past Executive Branch practice of interning civilians in theUnited States - most notably, the exclusion and internment of Japa-nese Americans during World War II.74 Since our framework contem-plates that Executive Branch practice in prior wars informs the mean-ing of the AUMF, he concludes that it is plausible within ourframework to view the AUMF as authorizing his hypothesized deten-tion. Professor Tushnet's conclusion, however, cannot survive otherelements of the framework, which, as just noted, rule out the possibil-ity of the hypothesized mass detention. Moreover, even consideringExecutive Branch practice alone, his conclusion would not follow.The reason that Executive Branch practice is relevant to interpretingthe AUMF is that Congress legislates against the backdrop of thatpractice and, absent evidence to the contrary, is presumed to acceptit.75 Congress, however, cannot plausibly be viewed as having ap-proved the practice of excluding and interning Japanese Americansduring World War II. To the contrary, Congress has made clear that itdisapproves of that internment. In 1988, it "acknowledge[d] the fun-damental injustice of the evacuation, relocation, and internment ofUnited States citizens and permanent resident aliens of Japanese an-cestry during World War II,"76 and authorized the payment of mone-tary compensation to the victims of the internment." Moreover, as wenoted in Congressional Authorization,78 the legislative history of 18U.S.C. ? 400o(a), which states that "[n]o citizen shall be imprisoned orotherwise detained by the United States except pursuant to an Act ofCongress," suggests that Congress specifically wanted to avoid a repe-tition of that sort of detention of non-combatants.79Third, although we agree with Professor Tushnet that during war-time Congress faces political and institutional hurdles to policing Ex-ecutive Branch action, and that the courts often defer to the political

74 See Tushnet, supra note 7, at 2676-77.75 See Bradley & Goldsmith, supra note i, at 2085-86.76 Civil Liberties Act of 1988, Pub. L. No. 100-383, ? i(i), 102 Stat. 903, 903 (codified at 50U.S.C. app. ? 1989 (2000)).77 See id. ? 105, 102 Stat. at 905-o8 (codified as amended at 50 U.S.C. app. ? 1989b-4).78 See Bradley & Goldsmith, supra note I, at 2io6 n.271.79 See H.R. REP. NO. 92-116, at 2 (1971), reprinted in 1971 U.S.C.C.A.N. 1435, 1435-36. Incontrast, Congress has not expressed disapproval of, and there has not been general criticism of,the detention of hundreds of thousands of prisoners of war - including some U.S. citizens - inthe United States during World War II. See Bradley & Goldsmith, supra note I, at 2106-o7 n.27'.This fact, in addition to the approach taken by the Supreme Court in several World War II-eradecisions, supports our claim that the AUMF is best viewed as authorizing the President to detain

those who qualify as enemy combatants under the AUMF, even though it does not authorize thedetention of non-combatants.


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2005] THE WAR ON TERRORISM 2697

branches, we do not believe that these observations by themselves es-tablish the case for amending the Constitution. Among other things,Professor Tushnet's claim that the current constitutional system is in-adequate depends on the assumption that the President (who, despitethe points noted by Professor Tushnet, remains regulated by Congressand the courts, scrutinized by the press, and subject to regular elec-tions) will, in acting pursuant to the AUMF, overvalue national secu-rity and undervalue individual liberty, and that he is doing so in thewar on terrorism. Professor Tushnet neither justifies this assumptionnor offers an example of a presidential act authorized by the AUMFthat would involve such an improper tradeoff between security andliberty.80 Moreover, any defense of his assumption would be difficult,since it would depend on a contested normative baseline for the ap-propriate balance between security and liberty, as well as contestedfactual assumptions about the security threats the nation currentlyfaces.

Finally, to justify an amendment to the Constitution, ProfessorTushnet would need to show that there is a realistic alternative to thecurrent constitutional arrangement that would operate better in prac-tice. He tentatively suggests a constitutional amendment to create aninstitution of elected judges, legislators, military officers, and civilianswho would promulgate and enforce "legally binding rules for the con-duct of military engagements."81 It is not obvious why such an institu-tion would do a better job than our current constitutional scheme ofbalancing liberty and security, but it does seem likely that such an in-stitution would be less effective in fighting wars.

IV. CONCLUSIONEach of the three Replies offers a useful perspective on the frame-work for interpreting the AUMF that we set forth in CongressionalAuthorization. Despite our disagreement with some aspects of the Re-plies, we believe that they confirm the importance of focusing on the

AUMF, at least as a starting point, in making legal assessments of thePresident's authority in the war on terrorism.

80 As noted above, we do not believe that his hypothetical about mass detention of ArabAmericans can plausibly be said to be authorized by the AUMF.81 Tushnet, supra note 7, at 2681.

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