The language was inserted into the bill by Rep. Howard McKeon (R-Calif.), the chairman of the Armed Services Committee, who unveiled it last week. President Obama never even requested the sweeping powers. In fact, the administration believes it already has all the authority it needs to wage the terror war.
But a coalition of advocates is now furiously attempting to downplay the measure’s significance, claiming it simply re-affirms the executive branch’s power to carry on the “War on Terror” for as long as there might be “terror” in the world. From the Washington Post to the Wall Street Journal, establishment media outlets are painting the proposed language as a harmless statement acknowledging that the terror war is legal.
But the reality is that the provision in question is extremely dangerous, according to critics. And it is also very different from past authorizations to use military force.
The provision would, for example, purport to give the President unchecked power — maybe even the duty — to attack unspecified countries, organizations, and people no matter where in the world they might be located. All with no limitations whatsoever. It purports to cede “the authority to use all necessary and appropriate force” to the executive branch in its never-ending battle against unnamed countries, organizations, and people.
The military could even be used to go after Americans in America. And the targets would not even have to represent a national security risk to the United States — real or otherwise — based on the language in the bill. So-called “belligerents,” Americans included, could be detained without trial until the end of hostilities. And that “end” may never come. Even “substantially supporting” somebody or some group the government deemed an enemy could get a person jailed indefinitely with no charges.
Of course, opposition to the provision is growing rapidly. A coalition of almost two dozen groups — human-rights, anti-war, Christian, Jewish, Islamic, and other organizations — recently sent a strongly worded letter to the Armed Services Committee urging it to stop the proposal.
“This monumental legislation — with a large-scale and practically irrevocable delegation of war power from Congress to the President — could commit the United States to a worldwide war without clear enemies, without any geographical boundaries,” noted the letter, pointing out that it would permit the use of military force within America. There would be no boundaries related to time or objectives to be accomplished.
“At minimum, Congress should hold hearings and follow regular order before even considering such sweeping legislation,” the organizations wrote. “The proposed new Declaration of War would be without precedent in the scope of war authority or duties transferred by Congress to the President.… If Congress broadly turns over to the President the power that Article I of the Constitution provides to Congress to declare war, it very likely will never get the power back.”
Citing a recent report from the non-partisan Congressional Research Service, the letter also notes that if the provision were interpreted as a Declaration of War, which appears likely, there are even broader implications. A few of those listed include administration exemptions from various federal laws such as budget limits, and broad government controls over private business and natural resources.
“Of all of the powers that Article I of the Constitution assigns to Congress, no power is more fundamental or important than the power ‘to declare War,’” the letter concludes. “We urge you to use this power carefully, and to oppose this wholesale turnover of war power, without any checks — and without even holding a single hearing.”
The American Civil Liberties Union complained that the provision would create a state of war “everywhere and anywhere.” Daphne Eviatar of Human Rights First’s Law and Security Program ridiculed Republican “deficit hawks” for complaining about spending while “declaring an unlimited war on all unnamed enemies of the United States of the president’s choosing.” And the list of organizations opposing the measure is still expanding.
Some legislators are sounding the alarm, too. "By declaring a global war against nameless individuals, organizations and nations 'associated' with the Taliban and al Qaeda, as well as those playing a supporting role in their efforts, [the provision] would appear to grant the president near unfettered authority to initiate military action around the world without further congressional approval," several dozen House members wrote in a letter to Rep. McKeon. "Such authority must not be ceded to the president without careful deliberation from Congress."
Milder provisions authorizing the use of force (with specific targets, objectives, and other important limitations) were cited by the Bush and Obama administrations as justification for detaining suspects indefinitely without charges, dropping bombs around the world using drones, and countless other controversial activities somehow tied to the terror war. But the new language would replace the previous authorization passed after the attacks of September 11.
That provision authorized strikes against people or groups believed to be responsible for the 9/11 attack. The new language lists as targets al-Qaeda — which ironically the U.S. government is arming in Libya in an effort to overthrow its former terror-war ally, perhaps unwittingly making itself a target of the proposed provision — the Taliban, “associated forces,” and their supporters.
Could WikiLeaks be deemed a “supporter” for releasing information about U.S. government war crimes? Could the American military swoop into England and detain WikiLeaks' leader, Julian Assange, indefinitely? What about journalists who object to the bombings of innocent civilians? Would that be considered “supporting” the enemy? The language of the bill is so broad and vague that it could essentially be used to justify anything, according to opponents.
Of course, the administration has already made clear that it will defy Congress if it disagrees with the law. On everything from the war in Libya to a law de-funding some of Obama’s “czars,” the executive branch has defiantly said it will simply ignore the legislative branch whenever it sees fit. But critics of the bill still worry that codifying into law infinite worldwide war against unknown targets is a dangerous proposition that must be stopped.
Since it is a part of the Defense Authorization Act, considered by most lawmakers to be a “must-pass” bill, the chances of McKeon’s endless terror-war provision succeeding are thought to be very high. And although Obama — following in the footsteps of George W. Bush — already behaves as if he had the authority, ceding Congress’ power over war to the executive branch may be a difficult mistake to reverse. Whether the legislative branch is even allowed to surrender its Article 1, Section 8 powers is another question entirely.
Photo of Howard McKeon: AP Images