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I addressed this before, a day or so ago when I wrote about the “worldwide war authority” accusation made by the ACLU against H.R. 1540 (The National Defense Authorization Act of 2012). I’m not saying that my past post was completely wrong, just the idea that this provision did not exist. In U.S. History, my class was talking about the Gulf of Tonkin Resolution (1964) that began major American actions in Vietnam and that got me thinking. I thought that maybe I should revisit the text that is causing internet uproar. 

It is hard to find the most recent version (OpenCongress has the non-marked up version of H.R. 1540) but I was still able to find the offending text. After being marked up by the Chairman of the House Armed Services Committee, Buck McKeon, the fateful words were added as Section 1034. The words are so broad that the President could go into war without Congress’s consent [pay attention to the bolded words]: 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).” This section is very similar to Gulf of Tonkin Resolution that passed Congress in 1964 with only two senators voting against it (everyone else voted for it in both chambers). The Gulf of Tonkin Resolution said: “Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repeal any armed attack against the forces of the United States and to prevent any further aggression.” (http://www.ourdocuments.gov/doc.php?doc=98) See a similarity? Both say the words “all necessary”, implying war powers going to the President and away from Congress. The Gulf of Tonkin Resolution was repealed in 1970. On the contrary, in 2001, only seven days after 9/11 the Authorization for Use of Military Force (the law that is mentioned in the quote from H.R. 1540) was passed by Congress.

The Authorization for Use of Military Force, commonly called AUMF, was passed by a Republican-dominated Congress. In its preamble it stated a simple notion, “[The] President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States” which is in keeping with the rage America felt after the attacks on the World Trade Centers and the Pentagon a week before. The text from Section 2 (a) sounds eerily like Section 1034 in H.R. 1540: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html) From that resolution, it seems like enough to declare war on Iraq (since AUMF led to war in Afghanistan), right? Well, not so. Another law was passed what was called the “Authorization for Use of Military Force Against Iraq Resolution of 2002.” This law gave war powers to the President stating: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1)   defend the national security of the United States against the continuing threat posed by Iraq…

(2)   acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.” [note that (2) is from later in the law, but is relevant].

From these two laws alone, President Obama could invade Iran. He could say he is taking “necessary actions against international terrorists” or is “prevent[ing] any future acts of international terrorism” by bringing American troops into the country. That is too much power for a President to have, dictatorial power in the hands of the so-called “leader of the free world.” The disputed section of the National Defense Authorization Act of 2012 (NDAA), section 1034 the ACLU argues would create a “new worldwide authorization to go to war [and gives] new war authority to the President…to unilaterally take our country to war.”In addition, the provision could justify a possible war in Iran or any other country that was “posing a threat.” While justifying a possible war, the President also acquires “the authority to detain belligerents, including persons….[who] are part of…al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or have engaged in hostilities or have directly supported hostilities…until the termination of hostilities.” This indefinite detention is a clear violation of the eighth amendment’s constitutional right prohibiting “cruel and unusual punishment.” It is completely in conflict with the Geneva Conventions additional protocol II (1977). The Protocol states, “[In] armed conflict…all the persons who have been deprived of their liberty…for reasons related to such conflict…shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty…the following acts against the persons are and shall remain prohibited at any time [including] violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishments.” (http://www.icrc.org/ihl.nsf/FULL/475?OpenDocument) As a result, Section 1034 would allow the President to authorize actions that violate the Geneva conventions and the U.S. Constitution. A comparison of AUMF, AUMF against Iraq in 2002, the Gulf of Tonkin Resolution and H.R. 1540 of NDAA shows the core immutable words relating to presidential war powers.  

This law will give more power to the President, power that Congress is supposed to have. Remember in Article I Section 8 that gives “Congress [the power] to declare war”? Well, ever since WWII, that power has almost eroded to nothing. The President has the power to declare war in a sense. The War Powers Resolution of 1973*, which was supposed to limit the President’s war powers and eliminate them, justified all future wars just as long as the President could inform Congress on the war. The war can even last for 60 days, without Congressional approval under the law; the President just has to tell Congress 48 hours after war has begun on the “state of hostilities. This is exactly what happened in Libya, a war that is now illegal and unconstitutional as I have written earlier. As Americans, you must restore the power to declare war to Congress and take it away from the President.  One way you can help is by signing the ACLU petition telling your Senators and Representatives to not support this law. The Constitution was founded on the idea of a limited government and giving power back to Congress will help restore that balance. As world citizens and as Americans, you need to help restore the Constitution and make America a place that upholds civil rights and the Constitution not violates them.


*Help repeal the War Powers Resolution by signing this petition. It will just take a second!