Congress authorizes perpetual lawlessness in the ‘war on terror’
In two major votes this week, the U.S. Congress gave a green light to expanding the decade-old “war on terror” both within the United States and abroad.
Sidestepping the bothersome question of how to define the nebulous concept of “terrorism,” both of these bills effectively authorized an unending policy of war abroad and police-state measures at home with no basis in constitutional or international law.
Sen. Ron Wyden (D-OR), a member of the Senate Select Intelligence Committee warned that the law not only violates the constitution, but that the Administration relies on secret legal interpretations that allow authorities to go well beyond the language of the law.
As Wyden said on the Senate floor, “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”
The other bill passed by Congress on Thursday provides blanket authorization for the president to “use all necessary and appropriate force” against terrorists anywhere around the world “until the termination of hostilities,” providing no indication of when the hostilities might end.
The $690 billion defense authorization bill for fiscal year 2012 not only fully funds operations in Afghanistan and Iraq, it also limits President Obama’s ability to deal with Guantanamo detainees and to reduce the number of nuclear weapons – as agreed to by the United States and Russia in the New START Treaty.
The legislation limits how nuclear arms reductions mandated by the treaty with Russia can be implemented, and restricts the administration’s ability to cut nuclear weapons below levels set by the accord. Effectively, the bill renegs on agreements made with the Russian Federation on nuclear arms reduction.
As if these breaches of international norms were not enough, Congress threw another measure into the defense authorization bill: an open-ended endorsement for the executive branch to wage perpetual worldwide war, on a whim, with no further authorization from Congress required.
Specifically, the legislation provides “affirmation of [the] armed conflict with al-Qaeda, the Taliban, and associated forces.”
In Section 1034 of the defense authorization bill,
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.
President Obama had threatened to veto the legislation, citing concerns over the worldwide war provision and restrictions on the executive branch’s authority to transfer terrorism suspects to the United States for prosecution or for release to other countries.
But this is unlikely, as any such veto would be highly problematic, considering the political and economic significance of the legislation. Any veto of a defense spending authorization bill would be portrayed as withdrawing support for American troops abroad, and would be unpopular among defense contractors and the employees who work for them.
From an international law perspective, however, the legislation raises all sorts of other issues, especially regarding the sovereignty and territorial integrity of countries around the world who may be accused of “substantially supporting, al-Qaeda, the Taliban, or associated forces.”
As Defense Secretary Robert Gates has stated, the movement known as “al-Qaeda” has “metastasized.”
In a November 2010 interview, Gates said, “As we’ve brought pressure on al Qaeda in North Waziristan [in Pakistan], the terrorist movement has metastasized in many ways. So now we see them in Somalia, in Yemen, in North Africa.”
So, as explained by the Secretary of Defense, as the U.S. puts pressure on al-Qaeda in one place, the movement just pops up somewhere else, sort of like a never-ending whack-a-mole game, with Predator Drones. Now, this never-ending game has been authorized by Congress, which even threw the language of “associated forces” into the legislation in case the ill-defined war against the al-Qaeda/Taliban enemy was not vague enough.
As the ACLU describes it,
The House just passed the National Defense Authorization Act (NDAA), including a provision to authorize worldwide war, which has no expiration date and will allow this president — and any future president — to go to war anywhere in the world, at any time, without further congressional authorization. The new authorization wouldn’t even require the president to show any threat to the national security of the United States. The American military could become the world’s cop, and could be sent into harm’s way almost anywhere and everywhere around the globe.
In authorizing unending global war against an enemy as murky as “al-Qaeda, the Taliban, or associated forces,” U.S. lawmakers have made clear that the niceties of international law are not high among Congress’s priorities.
After all, if legally binding international agreements had played some role in Congress’s deliberations, perhaps the lawmakers would have considered the possibility that authorizing “all necessary and appropriate force” against “nations, organization[s], and persons who … are substantially supporting, al-Qaeda, the Taliban, or associated forces,” might violate the UN Charter, which states that,
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
The Organization is based on the principle of the sovereign equality of all its Members.
All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Congress’s declaration of perpetual worldwide war violates that Charter – ratified by the U.S. Senate in 1945 – both in principle and in spirit.