Revise Sweeping Post 9/11 Powers: Experts

By Gary Feuerberg, Epoch Times
July 15, 2013 5:50 am Last Updated: July 15, 2013 8:07 am

Sen. Bob Corker (R-Tenn.), ranking member on the Senate Foreign Relations Committee, says Congress needs to reassert its authority and take ownership of American foreign policy.

WASHINGTON—No one expected a law passed right after 9/11 to last more than a decade and change how America handles military force. Only three days after terrorists attacked America on Sep. 11, 2001, Congress passed the “Authorization for Use of Military Force” that gave the president extraordinary powers.

While the nation was in crisis, the AUMF passed the Senate, 98 to 0, and the House 420 to 1. The initial purpose was to enable the administration to pursue the attackers in Afghanistan.

Now in the year 2013, some members of Congress in the Senate Foreign Relations Committee, both Republicans and Democrats, want to reconsider the law that granted unprecedented war-making powers to the president and a diminished role for the Congress. The law has never been revised or rescinded even though the enemy and the nature of conflict have arguably changed.

Former congresswoman Jane Harman (D-Calif.) introduced the subject on a panel sponsored jointly by the Woodrow Wilson International Center for Scholars and NPR on July 11. The event, “AUMF: Reasserting the Role of Congress,” is one of a series of events held at the Wilson Center.

Harman, who is president and CEO of the Wilson Center, was one of the 420 representatives who voted for the resolution that she said was debated for only five hours while the Senate debated still less. “As a former nine-term member of Congress who served on all the major security committees, I never imagined the AUMF would still be in effect today… the executive branch has used it in ways that no one who voted for it envisioned in 2001,” she said.

Taking Ownership

The Constitution divides the authority for the use of armed force between the executive and legislative branches. Under Article 2, Section 2, the president is commander and chief and under Article 1, Section 8, Congress is vested with the power to declare war. The AUMF gave wide latitude to the president to use lethal force, while Congress took a back seat.

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Only 60 words, the AUMF states:

“That 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.”

Sen. Bob Corker (R-Tenn.), ranking member of the Senate Foreign Relations Committee, said that he and colleagues returned from a trip to countries in northern Africa where the U.S. has been recently engaged in counter terrorism efforts. Corker said, “There is a very thin thread” between the response to the 9/11 attack that prompted the 60 word resolution in 2001 “to where we are today.”

“No one who voted for [AUMF] that day conceived that it would become the cornerstone of the administration’s counterterrorism policy around the world,” said Harman, at the University of Pennsylvania Law School, April 2.

The AUMF has been used to authorize the war in Afghanistan, drone strikes in multiple different countries, NSA surveillance, and to prolong detentions in Guantanamo Bay for over a decade, said Neal Katyal, professor of law at Georgetown University and former acting solicitor general of the United States.

Katyal said, “This is not the way our democracy is supposed to function.” He said the law is not unconstitutional, but elected representatives should conduct foreign operations, not others who often operate in secret.

Corker repeatedly said, “Congress needs to have some ownership.”

Corker and his colleagues on the Senate Foreign Relations Committee are discussing the AUMF and writing a couple of drafts that could replace it.

Congress reasserting itself is not a partisan issue, Corker said. When Congress relinquishes the management of foreign conflicts to the executive branch, “it keeps the public from being really informed“ about decisions regarding our military force and Foreign Service officers, he said.

Congress should be selling our policies back home, Corker said. “Very few Americans have any stake or ownership in our foreign policy. That is a major problem for our nation.”

Congress ‘Irresponsible’

Sarah Chayes objected to the keeping the AUMF because it made the “military tool” too easy to use. We deploy a “kinetic response” to address “phenomena that is frankly political in its genesis.” Disproportionate resources are used on the kinetic side—not just money but our thoughts and creativity in the last 12 years, she said. Chayes, currently at Carnegie Endowment, was a special adviser in 2010 to Chairman of the Joint Chiefs of Staff Admiral Mike Mullen.

Chayes questioned whether the military resources are really used for the safety of American citizens. She said that lethal force is used instead to protect “the reputations of some political leaders who don’t want to be the guy or gal where [a loss] happens on their watch.”

Corker said, “We immediately jump to the kinetic side. There is no planning whatsoever to keep these things from happening.” He blamed both Congress and the administration—and not just the current administration—for almost no planning. “That is totally irresponsible,” he said.

Corker gave examples of Congress’ passivity. He said the budget for USAID has not been approved since 1986. He had just come back from a trip to Pakistan and traveled to South Waziristan where we are building roads, line transmissions, and dams. “It’s amazing how your tax dollars are being spent,” he said.

“Americans, men and women, are losing their lives and we are wasting resources because we don’t conduct thoughtful planning,” Corker said.

Rep. Barbara Lee (D-Calif.) was the sole vote in Congress against the AUMF. She intended to participate in the discussion at the Wilson Center, but couldn’t get away because of a vote in Congress. In a June 11 press release, Lee said, “The AUMF has catapulted our country into a state of perpetual war that must come to an end.”