by Scott Creighton
UPDATE: It would appear that this clause was inserted after the staged “killing” of Osama bin Laden in an effort to ensure the Global War on Terror continued after his alleged demise. (see end of article)
According to the American Civil Liberties Union (ACLU), there is a clause hidden deep within the National Defense Authorization Act, Section 1034 of the Chairman’s Mark aka House Resolution 1540 (pdf), which will give the president unprecedented power to engage the United States in wars anywhere in the world at any time. It appears to be an open-ended declaration of war against “terrorists” whomever they may be so deemed at the time and where ever they may be at the time. And the ACLU seems convinced that the scope of the declaration would also include targets within the continental United States.
“To be clear, President Obama has not sought enactment of the proposed new Declaration of War. To the contrary, his Administration has made clear its position that it believes it already has all of the authority that it needs to fight terrorism. But if the proposed new Declaration of War becomes law, President Obama and all of his successors, until and unless a future Congress and future President repeal it, will have the sweeping new power to make war almost anywhere and everywhere.” ACLU
Perpetual war, not defined by location or nation, generally world wide, against al Qaeda or any “affiliated group or individual”, not limited to actions taken against the United States but rather suspected intentions that have yet to take place, and with no prior congressional authorization required.
The ACLU is right to be deeply concerned about this clause. There are some out there who are wondering as to the legitimacy of this issue as it is making it’s way through the early stages of the dissident sites. The Intel Hub is covering this as is Above Top Secret and AJ’s various sites. Several readers are wondering about the legitimacy of the claims made on these various sites. Let’s see if we can clear up some of that.
Here is a partial copy of the 2012 National Defense Authorization Act Chairman’s Mark on Scribd which does include section 1034 titled “Affirmation of Armed Conflict with Al Qaeda, the Taliban, and Associated Forces” which can be found if you scroll down to page 18.
Here is the full text of this section:
“Section 1034—Affirmation of Armed Conflict with Al-Qaeda, the Taliban, and Associated Forces
This section would affirm that the United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force(Public Law 107-40; 50 U.S.C. 1541 note). This section would also affirm that the President’s authority pursuant to the Authorization for Use of Military Force includes the authority to detain certain belligerents until the termination of hostilities.
The committee notes that as the United States nears the tenth anniversary of the attacks on September 11, 2001, the terrorist threat has evolved as a result of intense military and diplomatic pressure from the United States and its coalition partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave threat to U.S. national security. The Authorization for Use of Military Force necessarily includes the authority to address the continuing and evolving threat posed by these groups.
The committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13th 2009, interpretation remains consistent with the scope of the authorities provided by Congress” Section 1034
The ACLU wrote a comparison between this authorization clause and the one established in 2001 after Sept. 11th, 2001. It is also important to note that congress has not specifically issued a declaration of war since WWII. Here is the text of what they claim is actually being authorized by this clause:
Congress affirms that—
(1) the United States is engaged in an armed conflict with al‐Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al‐Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al‐Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.
When they put these authorizations up beside what was actually authorized in 2001 after the event of Sept. 11th 2001, it is a striking comparison. Back then they only authorized going after those who were directly involved in attacking this country or those who harbored them and it specifically stated that it did not supersede any of the established requirements of the war powers resolution.
The potential ramifications of this clause, if the ACLU is correct, are remarkable to say the least.
The ACLU has put together a coalition memo dated May 9th 2011, denouncing this clause in no uncertain terms. It is signed so far by the following organizations:
American Civil Liberties Union
Appeal for Justice
Brave New Foundation
Center for Constitutional Rights
Defending Dissent Foundation
High Road for Human Rights
Human Rights First
International Justice Network
Just Foreign Policy
Leadership Conference of Women Religious
Muslim Public Affairs Council
New Security Action
Pax Christi USA
Physicians for Human Rights
Psychologists for Social Responsibility
Unitarian Universalist Association of Congregations
United Methodist Church, General Board of Church and Society
Win Without War
At this point there is sufficient evidence to conclude that this issue is indeed very real and should be considered of grave importance to every US citizen.
On May 11th 2011, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and 32 House Democrats issued a letter strongly rejecting the language of Section 1034 which read in part:
“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 Detainee Security Act would appear to grant the president near unfettered authority to initiate military action around the world without further congressional approval,” Democrats wrote. “Such authority must not be ceded to the president without careful deliberation from Congress.”
Reps. John Conyers Jr. (D-Mich.), Steve Cohen (D-Tenn.), Peter DeFazio (D-Ore.), John Dingell (D-Mich.), Keith Ellison (D-Minn.), Bob Filner (D-Calif.), Raul Grijalva (D-Ariz.), Alcee Hastings (D-Fla.), Maurice Hinchey (D-NY), Michael Honda (D-Calif.), Jesse Jackson (D-Ill.), Sheila Jackson Lee (D-Texas), Dennis Kucinich (D-Ohio), Barbara Lee (D-Calif.), John Lewis (D-Ga.), Jim McDermott (D-Wash.), James McGovern (D-Mass.), George Miller (D-Calif.), Jim Moran (D-Va.), Jerrold Nadler (D-N.Y.), Eleanor Holmes Norton (D-D.C.), Donald Payne (D-N.J.), David Price (D-N.C.), Bobby Rush (D-Ill.), Jan Schakowsky (D-Ill.), Bobby Scott (D-Va.), Jackie Speier (D-Calif.), Fortney “Pete” Stark (D-Calif.), Bennie Thompson (D-Miss.), Maxine Waters (D-Calif.), Henry Waxman (D-Calif.), Lynn Woolsey (D-Calif.) and David Wu (D-Ore.). The Hill
Keeping in mind of course that I am not a lawyer, and that this is the Chairman’s Mark (which I take to mean the chairman’s mark-up of the bill, House Armed Services Committee Chairman Buck McKeon (R-Calif.)) the ACLU, the above listed organizations, and at least 33 members of the United States House of Representatives obviously consider this to be a very real threat to our civil liberties and the intent of the constitution itself, so it is certainly something to be deeply concerned about.
UPDATE: excerpt taken from Politico’s May 10th 2011 article:
“It’s been a decade…. Bin Laden is gone. We need to update the law,” said Rep. Mac Thornberry (R-Texas.), who’s supporting language that he says would reaffirm and clarify the 2001 resolution. The proposal is part of the defense authorization bill House Armed Services Committee Chairman Buck McKeon (R-Calif.) released Monday, which that panel is is set to mark up on Wednesday.
Experts say leaving the current AUMF in place could at some point end the war on terrorism as it is currently defined since the connection of terror suspects and their organizations to the September 11, 2001 attacks is likely to become more and more remote. Without a congressional authorization, a president might opt for different approach to counter-terrorism, or be obliged to follow less aggressive tactics against individuals or groups that were not affiliated with Al Qaeda or the 9/11 attacks.
The new language drops any reference to 9/11 and “affirms” a state of “armed conflict with al-Qaeda, the Taliban and associated forces.” The measure also explicitly gives the president the right to take prisoners “until the termination of hostilities” – something the courts have found to be implicit in the current version of the AUMF, though the new proposal could be seen to extend that power.
The revision is justified, according to Thornberry, because Al Qaeda is increasingly decentralized and because some dangerous splinter groups aren’t obviously connected to the 2001 attacks.
“We cannot relax just because bin Laden is no longer in the picture,” Thornberry told POLITICO Monday.” Politico