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http://ssrn.com/abstract=702502
 
 

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Congressional Authorization and the War on Terrorism


Curtis A. Bradley


Duke University - School of Law

Jack Landman Goldsmith III


Harvard Law School


Harvard Law Review, Vol. 118, May 2005

Abstract:     
This Article presents a framework for interpreting Congress's September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court's plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUMF. Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the "necessary and appropriate force" that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists.

Keywords: War, congressional authorization, terrorism, presidential authority

Accepted Paper Series


Not Available For Download

Date posted: April 22, 2005  

Suggested Citation

Bradley, Curtis A. and Goldsmith, Jack Landman, Congressional Authorization and the War on Terrorism. Harvard Law Review, Vol. 118, May 2005. Available at SSRN: http://ssrn.com/abstract=702502

Contact Information

Curtis A. Bradley (Contact Author)
Duke University - School of Law ( email )
Box 90360
Duke School of Law
Durham, NC 27708
United States
Jack Landman Goldsmith III
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
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