Hussain and AUMF Repeal

In light of the ongoing discussion regarding Justice Breyer’s interesting statement regarding denial of certiorari in Hussain, I thought I’d flag a separate, but related, discussion about the implications of AUMF repeal under both domestic and international law purposes over at the ICRC-sponsored blog, Intercross.  ICRC’s Gary Brown frames the debate; Bobby Chesney talks about the international law implications of repeal and the relationship between the facts on the ground and the governing legal framework; and I then chime in with a focus on the domestic law implications.  At least for domestic law purposes, it seems as if the detention tail (namely the Guantanano issue and the perceived need for continued legal authority to detain) may be wagging the law of war dog (perpetuating the application of a law of war framework, even as policies are put in place that at least on their face limit uses of force akin to what would be allowed during peacetime).  But as Justice Breyer’s statement reminds us, it is at least possible that the hard detention questions will arise even if the AUMF remains on the books – if, for example, the Supreme Court decides that with the withdrawal of forces from Afghanistan the continued detention of 154 men pursuant to the law of war is no longer permitted. 

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Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).