Three days after the attacks of 9/11/2001, Congress passed the Authorization for the Use of Military Force (AUMF).
It authorized then-Pres. Bush to use all “necessary and appropriate force” against those whom he determined “planned, authorized, committed or aided” the 9/11 attacks, or those who “harbored” those responsible for 9/11.
At a Senate committee hearing yesterday, Sen. Lindsay Graham wanted to make sure that the Pentagon and military leaders believe the AUMF still gives them all the authority and discretion they need to bomb or send troops into any country in which Al Qaida might have a presence without any further action from Congress
Yes, the Pentagon officials replied. Syrian, Yemen and the Congo were mentioned as examples of countries into which the AUMF would authorize them to take lethal action or send troops without any new congressional action.
Michael Sheehan, assistant secretary of defense for special operations/low-intensity conflict, said that “the enemy determines” where the battlefield exists, that the AUMF would be sufficient to authorize military action anywhere. He estimated this power and discretion, under the existing 12-year-old authorization, should be good for at least another “10 or 20 years.”
Sen. Graham said that he agreed and he was glad to hear that the Pentagon viewed the situation that way.
Sen. Angus King, the independent from Maine, seemed shocked. He said:
SEN. KING: Gentlemen, I’ve only been here five months, but this is the most astounding and most astoundingly disturbing hearing that I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution here today. The Constitution, Article I, Section 8, Clause 11, clearly says that the Congress has the power to declare war.
This—this authorization, the AUMF, is very limited. And you keep using the term “associated forces.” You use it 13 times in your statement. That is not in the AUMF. And you said at one point, “It suits us very well.” I assume it does suit you very well, because you’re reading it to cover everything and anything. And then you said, at another point, “So, even if the AUMF doesn’t apply, the general law of war applies, and we can take these actions.”
So, my question is: How do you possibly square this with the requirement of the Constitution that the Congress has the power to declare war? This is one of the most fundamental divisions in our constitutional scheme, that the Congress has the power to declare war; the president is the commander-in-chief and prosecutes the war. But you’re reading this AUMF in such a way as to apply clearly outside of what it says.
Senator McCain was absolutely right: It refers to the people who planned, authorized, committed or aided the terrorist attacks on September 11. That’s a date. That’s a date. It doesn’t go into the future. And then it says, “or harbored such organizations”—past tense—”or persons in order to prevent any future acts by such nations, organizations or persons.” It established a date.
I don’t disagree that we need to fight terrorism. But we need to do it in a constitutionally sound way. Now, I’m just a little, old lawyer from Brunswick, Maine, but I don’t see how you can possibly read this to be in comport with the Constitution and authorize any acts by the president. You had testified to Senator Graham that you believe that you could put boots on the ground in Yemen now under this—under this document. That makes the war powers a nullity. I’m sorry to ask such a long question, but my question is: What’s your response to this? Anybody?
MICHAEL SHEEHAN: Senator, let me take the first response. I’m not a constitutional lawyer or a lawyer of any kind. But let me talk to you a little—take a brief statement about al-Qaida and the organization that attacked us on September 11, 2001. In the two years prior to that, Senator King, that organization attacked us in East Africa and killed 17 Americans in our embassy in Nairobi, with loosely affiliated groups of people in East Africa. A year prior to 9/11, that same organization, with its affiliates in Yemen, almost sunk a U.S. ship, the U.S.S. Cole, a billion-dollar warship, killed 17 sailors in the port of Aden. The organization that attacked us on 9/11 already had its tentacles in—around the world with associated groups. That was the nature of the organization then; it is the nature of the organization now. In order to attack that organization, we have to attack it with those affiliates that are its operational arm that have previously attacked and killed Americans, and at high-level interests, and continue to try to do that.
SEN. KING: That’s fine, but that’s not what the AUMF says. You can—you can—what I’m saying is, we may need new authority, but don’t—if you expand this to the extent that you have, it’s meaningless, and the limitation in the war power is meaningless. I’m not disagreeing that we need to attack terrorism wherever it comes from and whoever is doing it. But what I’m saying is, let’s do it in a constitutional way, not by putting a gloss on a document that clearly won’t support it. It just—it just doesn’t—it just doesn’t work. I’m just reading the words. It’s all focused on September 11 and who was involved, and you guys have invented this term “associated forces” that’s nowhere in this document. As I mentioned, in your written statement, you use that—that’s the key term. You use it 13 times. It’s the justification for everything. And it renders the war powers of the Congress null and void. I don’t understand. I mean, I do understand you’re saying we don’t need any change, because the way you read it, you can—you could do anything. But why not say—come back to us and say, “Yes, you’re correct that this is an overbroad reading that renders the war powers of the Congress a nullity; therefore, we need new authorization to respond to the new situation”? I don’t understand why—I mean, I do understand it, because the way you read it, there’s no limit. But that’s not what the Constitution contemplates.
There’s video and a bit more of the transcript of the exchange, from Democracy Now!, right here.