Another Change to Section 1031 of the SASC NDAA Bill

Two weeks ago, I had a few posts discussing the scope of detention authority authorized under section 1031 of the then-pending SASC version of the NDAA, in response to Steve Vladeck's concern that the language could be read to encompass detention of persons having nothing to do with the 9/18/01 AUMF.  I argued that 1031 could not be read that way because, however broadly the notion of a "covered person" subject to detention might be defined, the opening sentence of section 1031 specified a grant of detention authority as only as to "covered persons captured in the course of hostilities authorized by the [AUMF]."  Well, it has been brought to my attention that this language has been changed in the new SASC bill about which I posted last night.  Here is the new operative language:

(a) In General -- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war."

Does this  blow things wide open?  I don't think so.  First, subsection 1031(a) does still hinge on the AUMF, though to be fair the prior version framed this more explicitly as a restriction.  I think that a fair reading of 1031(a) and the definition of "covered persons" in 1031(b) does require bearing the AUMF reference in mind. All that said, it is less clear now than it was before that this is the case.  Fortunately, there is a second argument for the limited reading: new subsection 1031(d) provides that nothing in 1031 is meant "to limit or expand the authority of the President or the scope of the [AUMF]."  This is enough, in my view, to produce more or less the same result that I think obtained under the prior version of the bill.