Obama War Powers Under 2001 Law 'Astoundingly Disturbing,' Senators Say
by Michael McAuliff
WASHINGTON -- The war authorization that Congress passed after 9/11
will be needed for at least 10 to 20 more years, and can be used to
put the United States military on the ground anywhere, from Syria to
the Congo to Boston, military officials argued Thursday.
The revelations came during a hearing before the Senate Armed Services
Committee and surprised even experts in America's use of force
stemming from the terrorist attacks in 2001.
"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 today," Sen. Angus King (I-Maine) told four
senior U.S. military officials who testified about the 2001
Authorization to Use Military Force and what it allows the White House
King and others were stunned by answers to specific questions about
where President Barack Obama could use force under the key provision
of the AUMF -- a 60-word paragraph that targeted those responsible
for the 9/11 attacks.
"I learned more in this hearing about the scope of the AUMF than in
all of my study in the last four or five years," said Harvard Law
professor Jack Goldsmith, who was called by the committee to offer
independent comments on the issue. "I thought I knew what the
application [of the AUMF] meant, but I'm less confident now," he added
Concerns emerged largely from questions by senators who approve of an
aggressive strategy to combat terrorism, including Sen. Lindsey Graham
(R-S.C.), who asked if the AUMF gave Obama the authority to put "boots
on the ground" in Yemen or the Congo.
Robert Taylor, the acting general counsel for the Department of
Defense said yes, as long as the purpose was targeting a group
associated with al Qaeda that intended to harm the United States or
its coalition partners.
"Would you agree with me, the battlefield is anywhere the enemy
chooses to make it?" asked Graham.
"Yes sir, from Boston to FATA [Pakistan's federally administered
tribal areas]," answered Michael Sheehan, the assistant secretary of
defense who oversees special operations.
Sen. Joe Donnelly (D-Ind.) later raised the specter of the AUMF being
used to intervene in Syria, where the group Al Nusra, believed to be
affiliated with Al Qaeda, is active. Al Nusra has not been linked to
Sheehan said yes, if defense officials determined the group was
becoming a threat. The same criteria applied to other groups, even if
they were locally focused and operating in other nations. Taylor
confirmed that AUMF also would cover individuals, even those who had
not been born by 9/11, if, as Sen. Tim Kaine (D-Va.) asked, they
someday were to "become associated with a group that associates with
When asked about an expiration date for the war authorization, Sheehan
said it would be when al Qaeda had been consigned to the "ash heap of
history." "I think it's at least 10 to 20 years."
While none of the senators suggested dialing back efforts to stop
terrorists, they were clearly disturbed at the power being asserted by
"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," King said, arguing that the defense officials'
interpretation of the AUMF makes the war power of Congress "a
nullity." "Under your reading, we've granted unbelievable powers to
the president and it's a very dangerous precedent."
Kaine found the suggestion that the AUMF could be used to go into
Syria especially disturbing. "The testimony I hear today suggests the
administration believes that they would have the authority to do
that," Kaine said. "But I don't want us to walk out of the room
leaving an impression that members of Congress also share the
understanding that that would be acceptable."
The DOD officials repeatedly defended the authority they've claimed,
noting that al Qaeda is not a traditional enemy, and that it shifts
locations and changes its tactics. The broad interpretation of the
AUMF, they argued, gives them the flexibility to deal with the
changing threat in a lawful, effective manner.
But even Sen. John McCain (R-Ariz.), who generally agrees with Graham
in pursuing a vigorous war on terror, said the AUMF has been stretched
past the breaking point.
"This authority ... has grown way out of proportion and is no longer
applicable to the conditions that prevailed, that motivated the United
States Congress to pass the authorization for the use of military
force that we did in 2001," McCain said.
"For you to come here and say we don't need to change it or revise or
update it, I think is, well, disturbing," McCain said, noting that the
AUMF also is used to justify things like drone strikes that were never
contemplated by Congress. "I don't blame you because basically you've
got carte blanche as to what you are doing around the world."
No one suggested specific solutions, but did say the Senate will deal
with the problem later this year when the committee takes on the
National Defense Authorization Act for 2014.
The broad assertion of authority by the military is likely to disturb
civil libertarians on the left and right who have complained that the
AUMF and a previous version of the NDAA give the military power to
indefinitely detain U.S. citizens. Obama has issued orders banning
such practices, but DOD officials apparently believe the law grants
them the power to act anywhere.