A week after the death of Osama bin Laden, Congress is expanding the war on terror.
Last week's raid on bin Laden's compound in Abbottabad was made possible by the 2001 Authorization to Use Military Force (AUMF), which empowered the president to bring those involved in the 9/11 attacks to justice. But since then, that authorization has also been used by both the Obama and Bush administrations to justify attacks against suspected targets abroad who were not directly involved in the 9/11 attacks. Legal experts have questioned whether the 2001 AUMF explicitly grants that authority.
It may soon be a moot point. Contained in the National Defense Authorization Act for 2012 is a new authorization to use military force that would grant the executive branch the power to "address the continuing and evolving threat posed by these groups." In practice, that means the president could use military force against any suspected terrorist across the globe -- indefinitely.
For critics, the bill would quietly sanction a "forever war" that has no clear military objective and that targets individuals with no ties to the 9/11 attacks. Supporters counter that bin Laden's death doesn't negate the threat from al-Qaeda franchises and affiliated terrorist groups and that the proposal would merely put the administration on firmer legal ground for what it is already doing. "This simply better aligns the original AUMF authority with the current threats and the current operations," says Josh Holly, communications director for the U.S. House Armed Services Committee.
Chris Anders, an attorney for the ACLU, says the legislation and the way in which it is being introduced, is unprecedented. "Congress is declaring war for the first time in 70 years, and it's being tucked away in the chairman's mark of a national defense authorization act as section 1034 of the bill," Anders says. "There's never been an AUMF or a declaration of war that's been tucked into another bill -- these are monumental decisions the country makes."
The 2001 authorization, it should be pointed out, was used as a legal basis for broad powers that were never intended by Congress -- for instance, as justification for Bush's warrantless wiretapping program. While the courts ultimately decided that the 2001 AUMF included the authority to detain suspected terrorists under the laws of war, the new one draws out those powers explicitly. No matter how well intentioned, critics say, the bill would end up justifying broad expansions of government power that we can't possibly predict today; it would codify in legal terms the vision of a global battlefield that both administrations have embraced and remove any hope of retreating from the war framework that has characterized both administrations' approach to terrorism for the past 10 years.
"We have these groups out there, and as this conflict metastasizes further, there will be more and more terrorist groups with less and less obvious connections to core al-Qaeda, and they will be as unreachable by traditional law enforcement means as al Shabab and al-Qaeda in the Arabian Peninsula are now," says Ben Wittes, a legal scholar at the Brookings Institution. "To the extent that Congress can provide guidance as to who you can and can't attack, that strikes me as good wartime legal housekeeping."
While Pentagon Counsel Jeh Johnson seemed lukewarm to the idea of a new AUMF in a congressional hearing on detention two months ago, Holly said the new law was the product of "extensive conversations" with the administration. That cooperation is evident in the legislation itself. While previous Republican proposals mandated that suspected terrorists apprehended in the United States -- citizen or otherwise -- be subject to military detention, the new bill contains no such language. In addition, a provision in the 2001 law that prevented detainees who lost their habeas cases from having civilian attorneys represent them during the detention-review process has been amended; now, military representatives can advocate on their behalf.
The legislation does maintain a ban on transfers from or federal trials for Gitmo detainees -- and prohibits the transfer of suspected terrorists captured anywhere abroad -- from being brought to U.S. soil for trial. It also maintains restrictions on when detainees can be transferred to other countries, forcing the secretary of defense to personally attest that they pose no future risk or that the transfer is consistent with national security.
Anders points out that while the worst elements of the original Republican proposal have been excised, they haven't been explicitly banned either. So just as the executive branch claimed authority not explicitly granted by the 2001 authorization, a future president could conceivably claim such powers based on the new proposal. The administration has reiterated its desire to close Gitmo, but by making transfers difficult and preventing future detainees from being transferred into federal courts, it makes the possibility of a future president reopening Gitmo for business likely.
The new AUMF is hardly the only sign that Congress isn't close to ready to wind down the war on terror. New York Sen. Chuck Schumer has proposed a "no-ride list" for trains, based on the much criticized "no-fly list" that the ACLU is already challenging as unconstitutional. Yesterday, Senate Republicans blocked the nomination of James Cole to a top position at the Justice Department because he previously said that terrorism was largely a "law-enforcement matter." The view that terrorism was more of a law-enforcement problem was once uncontroversial among Democrats, but that was before a Democratic president went on to adopt much of the legal architecture -- if not the actual rhetoric -- of a global war against terrorism.
"This is a time when I think most Americans are thinking about how to wind down our commitments to the two wars that are out there," says Anders. "This would be declaring a new worldwide war without any limitations by time, geography, or national interest."
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