New Authorization of Worldwide War Without End?Congress may soon vote on a new declaration of worldwide war without end, and without clear enemies. A “sleeper provision” deep inside defense bills pending before Congress could become the single biggest hand-over of unchecked war authority from Congress to the executive branch in modern American history.
President Obama has not sought new war authority. In fact, his administration has made clear that it believes it already has all of the authority that it needs to fight terrorism.
But Congress is considering monumental new legislation that would grant the president – and all presidents after him – sweeping new power to make war almost anywhere and everywhere. Unlike previous grants of authority for the Afghanistan and Iraq wars, the proposed legislation would allow a president to use military force wherever terrorism suspects are present in the world, regardless of whether there has been any harm to U.S. citizens, or any attack on the United States, or any imminent threat of an attack. The legislation is broad enough to permit a president to use military force within the United States and against American citizens. The legislation contains no expiration date, and no criteria to determine when a president’s authority to use military force would end.
Of all of the powers that the Constitution assigns to Congress, no power is more fundamental or important than the power “to declare War.” That is why, in 2002, when Congress was considering whether to authorize war in Iraq, it held fifteen hearings, and passed legislation that cited specific harms, set limits, and defined a clear objective. Now, Congress is poised to give unchecked authority to the executive branch to use military force worldwide, with profoundly negative consequences for our fundamental democratic system of checks and balances. Once Congress expands the president’s war power, it will be nearly impossible to rein it back in. The ACLU strongly opposes a wholesale turnover of war power from Congress to the president – and all of his successors.
Coalition Memo to the House Committee on Armed Services Regarding a Proposed New Declaration of War
Comparison of 2001 Authorization for Use of Military Force and Proposed Expanded Authorization
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.