Should Legislation Clarify that Detention Authority Vis-a-Vis Al Qaeda Extends Beyond the End of Combat Operations In Afghanistan? Or Should We Leave That to GTMO Habeas Round Two, Circa 2013 or So?

Deborah Pearlstein and Ben have been exchanging posts in relation to the pending NDAA legislation and detention authority issues.  One passage in the exchange struck me as particularly significant.  Deb writes:

the purpose I think motivating most who are interested in new legislation is to make clear that what detention authority already exists should continue to exist, and in broader form, going forward.  That is, that the United States should continue to have the authority to detain not only those held in the conflict in Afghanistan, for example, but also anyone we might pick up and suspect of terrorist activity anywhere else, whether or not tied to the attacks of September 11.

(emphasis added by me).  This passage highlights two distinct but related issues.  One is the familiar issue of whether the substantive scope of detention authority should be expanded beyond the status quo (well, also the subsidiary questions whether and to what extent the pending legislative proposals actually do that).  The other is much less familiar, but deserves to be at the forefront of the legislative debate: Whether detention authority under the 9/18/01 AUMF would survive after the end of significant U.S. involvement in the conflict in Afghanistan (an event that will occur sooner or later, and these days sooner seems to be a better bet than later, for better or worse; yes, we'd probably attempt to preserve a light-footprint JSOC/CIA strike capacity, but let's assume that this shift would be more than enough to call the question over whether "armed conflict" still exists). Let's call this the "duration issue."  It matters because no small number of those who accept the basic principle that the AUMF currently confers some degree of detention authority take that view only because there is at this moment a relatively-undisputed state of armed conflict in Afghanistan.  Take away that armed conflict, or U.S. involvement in it, and at least some of those persons presumably would then take the view that the legal foundation for detention has ended as well, because they don't buy the notion of a US-al Qaeda conflict untethered from relatively-conventional combat in Afghanistan. Here's the thing: Congress, of course, is free to override this debate simply by specifying that the executive branch has authority to use the exact same scope of detention as it does currently (or more, or less) regardless of whether combat continues in Afghanistan.  This would raise some issues, to be sure, and it would be great to see some discussion of those issues (e.g., should such legislation incorporate Common Article 3 or Article 75 by reference, and what would mark the endpoint of such authority).  But the important point for present purposes is simply that it is well within the power of Congress to clarify that the executive branch may continue to detain al Qaeda members beyond the end of combat operations in Afghanistan, thus mooting the inevitable debate that otherwise will arise at that point--and that would otherwise then get played out in the form of a second round of habeas petitions from GTMO detainees who lost in the current round. I can well imagine the contending policy arguments for and against having such post-Afghanistan detention authority available; personally, I'm on the "for" side, though I think the current AUMF is best read to provide it already.  Either way, however, it is a policy question.  And since this policy question can be decided one way or the other by legislation, perhaps it should be?  (Actually, if one is against such an extension as a matter of policy, a legislative statement to that effect seems a bit much to hope for; those persons will no doubt be left to hope that there is indeed a second round of habeas if and when this situation materializes, and that judges do indeed come to the view that the legacy AUMF no longer confers authority to detain). I'm not suggesting, by the way, that either of the pending NDAA bills actually does the trick.  For the moment, I'd just like to flag this question, and see whether folks at least agree that there is a latent but looming fight over whether detention under the current AUMF will have to end after combat operations in Afghanistan end.