[Infowarrior] - Debating the Legal Basis for the War on Terror

[Richard Forno]

Debating the Legal Basis for the War on Terror

By CHARLIE SAVAGE

Published: May 16, 2013

http://www.nytimes.com/2013/05/17/us/politics/pentagon-official-urges-congress-to-keep-statute-allowing-war-on-terror-intact.html?hp&_r=0

WASHINGTON — A top Pentagon official said Thursday that the evolving war against Al Qaeda was likely to continue “at least 10 to 20 years” and urged Congress not to modify the statute that provides its legal basis.

“As of right now, it suits us very well,” Michael A. Sheehan, the assistant secretary of defense for special operations, said, referring to the “authorization to use military force,” often referred to as the A.U.M.F., enacted by Congress in 2001.

The statute authorized war against the perpetrators of the terrorist attacks of Sept. 11, 2001, and those who harbored them — that is, Al Qaeda and the Taliban.

Lawmakers are considering enacting a new authorization, because the original Qaeda network has been largely decimated, while the current threat is increasingly seen as arising from terrorist groups in places like Yemen that share Al Qaeda’s ideology but have no connection to the 2001 attacks.

That possibility has elicited a decidedly mixed reaction. Human rights groups that want to see the 12-year-old military conflict wind down fear that a new authorization would create an open-ended “forever war.”

Some supporters of continuing the wartime approach to terrorism indefinitely fear that the war’s legal basis is eroding and needs to be bolstered, while others worry that a new statute might contain limits that would reduce the power that the Obama administration claims it already wields under the 2001 version.

And still others say that whatever the right policy may be, Congress should protect its constitutional role by explicitly authorizing the parameters of the war, rather than ceding that decision to the executive branch.

In a hearing on Thursday of the Senate Armed Services Committee, where Mr. Sheehan made his remarks, Senator John McCain, Republican of Arizona, argued that the statute should be updated, citing the “dramatically changed landscape that we have in this war on Muslim extremism and Al Qaeda and others.”

He pressed the acting general counsel of the Pentagon, Robert S. Taylor, to say whether the 2001 law authorized war against Al Qaeda’s associated forces in Mali, Libya and Syria.

Mr. Taylor said that as a matter of domestic law, the authorization did grant such authority if groups in those countries had affiliated themselves with the original Al Qaeda and became “co-belligerents” in the conflict.

“So we can expect drone strikes into Syria if we find Al Qaeda there?” Mr. McCain asked. Mr. Taylor said he did not want to speculate.

Under questioning by Senator Joe Donnelly, Democrat of Indiana, Mr. Sheehan said he believed that the Nusra Front, a rebel group in Syria, was a Qaeda affiliate and that the executive branch could use lethal force against it if it believed the group threatened American security. But when pressed to say whether it did pose such a threat, he declined to say. “I don’t want to get in this setting into the decision making for how we target different organizations and groups around the world,” he said.

Senator Angus King, independent of Maine, noted that the 2001 statute said nothing about “associated forces” of Al Qaeda. He said the administration’s theory had “essentially rewritten the Constitution here today” because it was up to Congress to declare war. “I don’t disagree that we need to fight terrorism, but we need to do it in a constitutional way,” he said.

But Senator Carl Levin, Democrat of Michigan, argued that the administration’s interpretation of its wartime authority was correct, and the authorization did automatically extend the war to others that aligned themselves with Al Qaeda and “joined the fight against us.”

In 2011, Congress enacted a statute declaring that the 2001 authorization allowed the indefinite detention of members and supporters of Al Qaeda, the Taliban or associated forces, even if not linked to the Sept. 11 attacks. But a judge has blocked the statute, questioning whether mere supporters and associated forces are covered by it. The Obama administration has appealed the ruling.

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