Hamdi

I’ve not yet had time to read the Hamdi decision. I’ll make time, because I think it’ll be one of the most important decisions in recent legal history. But I did see one passage in the plurality opinion that concerns me a lot. Yes, it’s dicta, but it suggests trouble:

The AUMF [i.e., the Authorization for Use of Military Force] authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

Hamdi v. Rumsfeld, 2004 WL 1431951, *7 (U.S. 2004).

This troubles me for two reasons. First, I think it very important that people know that the “Authorization for Use of Military Force” is a Declaration of War. I keep hearing people refer to this as an “undeclared” war. But a Congressional authorization for the use of “all…force” is a Declaration of War whether or not it includes the magic word “war.”

Second, the Declaration of War gives the President authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks….” When Justice O’Connor writes that the Taliban were among those “Congress sought to target,” she is subtly misconceiving the Declaration. Congress did not “seek to target” with any more specificity than the bounds of reason—rather, they delegated to the President the authority to determine the proper targets. I fear that the plurality’s mischaracterization reflects their belief—common on the left, as we know—that the Iraq War was outside the bounds of the War, and suggests that they would be willing to declare in a future opinion that the Iraq War was not authorized by the “AUMF.”

Now, perhaps that’s not a problem—Congress passed a separate resolution declaring war on Iraq. But dicta—and particularly with this Court—can cause problems.