Bonus 99: Justice Breyer and the AUMF

As the most important post-September 11 counterterrorism statute passes its 23rd birthday, a look at Justice Breyer's central role in (and later concerns about) its only trip to the Supreme Court

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

The topic for this week’s bonus issue was prompted by an anniversary that came and went yesterday with very little fanfare—the 23rd anniversary of the signing into law of the “Authorization for the Use of Military Force” (AUMF), the statute that formed (and continues to form) the domestic legal basis for most of the United States’ overseas military counterterrorism operations over the past two decades. Even as presidents of both parties have invoked the AUMF to justify uses of military force against groups and individuals with increasing geographic and organizational distance from al Qaeda, Congress has left the original text of the statute unchanged—acquiescing in a rather stunning drift of war powers from the legislative branch to the executive:

But as much as the story of the AUMF is one of congressional abdication, it’s also a story about Justice Stephen Breyer—not just his decisive vote in favor of the Bush administration in Hamdi v. Rumsfeld, the one Supreme Court case in which the justices ever interpreted the AUMF, but his efforts in two obscure later cases to persuade his colleagues to revisit Hamdi’s scope as the “war on terrorism” dragged into a second (and, now, a third) decade. Only Justice Breyer knows if he came to regret his vote in Hamdi; what can’t be denied is that, for years, his was the loudest voice inside the Court for the justices to take up another AUMF case—something they still haven’t done (and may never again do).

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.