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House Republicans Shred Constitution With Backdoor Proposal of Permanent War

by John Nichols

House Republicans like to talk -- and talk, and talk -- about their regard for the founders and the Constitution.

The House Republican leadership, working in conjunction with House Armed Services Committee Chairman Buck McKeon, R-California, has included in the 2012 defense authorization bill language (borrowed from the sweeping Detainee Security Act) that would effectively declare a state of permanent war against unnamed and ill-defined foreign forces "associated" with the Taliban and al Qaeda. House Speaker John Boehner, Congresswoman Michele Bachmann, R-Tea Party, and their circle even attempted -- in unsettlingly bumbling manner -- to read the document into the Congressional Record at the opening of the current Congress.

Now, however, with a backdoor plan to commit the United States to a course of permanent warmaking, they are affronting the most basic premises of a Constitution that requires congressional declarations of all wars and direct and engaged oversight of military missions.

The House Republican leadership, working in conjunction with House Armed Services Committee Chairman Buck McKeon, R-California, has included in the 2012 defense authorization bill language (borrowed from the sweeping Detainee Security Act) that would effectively declare a state of permanent war against unnamed and ill-defined foreign forces "associated" with the Taliban and al Qaeda.
 
The means that, despite the killing of Osama bin Laden in Pakistan (which GOP leaders in the House have refused to officially recognize as a significant development), the Department of Defense will be authorized to maintain a permanent occupation of Afghanistan, a country bin Laden abandoned years ago, and a global war against what remains of bin Laden's fragmented operation.
 
Instead of an explicit declaration of war with Afghanistan or the ill-defined global conflict, the GOP leaders has slipped language into the spending bill that simply announced theU.S. is "engaged in an armed conflict with al Qaeda, the Taliban and associated forces" and that claims an old "Authorization for Use of Military Force necessarily includes the authority to address the continuing and evolving threat posed by these groups."
 
That's about a wide-ranging as it gets, and the ranking Democrat on the House Judiciary Committee argues that the language makes a mockery of the Constitutional requirement that Congress check and balance the executive branch and the Department of Defense when it comes to questions of extending wars.
 
(The language included in the spending bill) would appear to grant the President near unfettered authority to initiate military action around the world without further congressional approval," argues Congressman John Conyers, D-Michigan. "Such authority must not be ceded to the President without careful deliberation from Congress."
 
Conyers and 32 House Democrats have written Armed Services Committee Chairman McKeon asking that he "immediately call hearings... so that the American people have an opportunity to consider the serious impacts that this legislation could have on our national security."
 
That's the right call.
 
Who says?
 
James Madison, the essential author of Constitution.
 
Madison observed in the founding years of the American experiment that: "Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare."
 
The Madisonian impulse is kept alive today not by House leaders who claim to revere the Constitution while adandoning its principles but by those members of Congress who object to permanent war for the same reasons that thewisest of the founders did.
 
Here is the Conyers letter:
 

Dear Chairman McKeon:
 
We are writing concerning certain troubling provisions in H.R. 968, the Detainee Security Act of 2011, which we understand are likely to be considered as part of the National Defense Authorization Act (NDAA) of the Fiscal Year of 2012. Whatever one thinks about the merits of the Detainee Security Act, it is a serious enough departure from current counterterrorism policy and practice to merit consideration apart from the NDAA. Accordingly, we request that you use your chairmanship in the House Armed Services Committee to immediately hold hearings so that the public can further consider the various provisions within the Detainee Security Act.
 
Among the many troubling aspects of the Detainee Security Act are provisions that expand the war against terrorist organizations on a global basis. The Authorization for the Use of Military Force (AUMF) of 2001 was widely thought to provide authorization for the war in Afghanistan to root out al Qaeda, the Taliban, and others responsible for the 9/11 attacks. That war has dragged on for almost ten years, and after the demise of Osama Bin Laden, as the United States prepares for withdrawal from Afghanistan, the Detainee Security Act purports to expand the "armed conflict" against the Taliban, al Qaeda, and "associated forces" without limit. By declaring a global war against nameless individuals, organizations, and nations "associated" with the Taliban and al Qaeda, as well as those playing a supporting role in their efforts, the Detainee Security Act would appear to grant the President near unfettered authority to initiate military action around the world without further congressional approval. Such authority must not be ceded to the President without careful deliberation from Congress.
 
The Detainee Security Act also unwisely requires that all terrorism suspects eligible for detention under the AUMF be held exclusively in military custody pending further disposition. The practical effect of this provision will be to undermine the ability of the FBI and local law enforcement to participate in counterterrorism operations, which could have serious negative impacts on national security. Moreover, in a recent hearing in the House Armed Services Committee, Department of Defense General Counsel Jeh Johnson noted that, rather than help clarify detention authority, the military custody provision in the Detainee Security Act would create serious litigation risk for the government.
 
The Detainee Security Act contains several additional troublesome provisions that relate to Guantanamo. The Detainee Security Act in effect requires that terrorism suspects be tried in military commissions, thereby cutting out Article III federal courts from conducting terrorism trials. This is unwise, as Article III federal courts have convicted over 400 individuals of terrorism-related offenses since 9/11. Military commissions, mired by legal problems and controversy, have convicted only six. The Detainee Security Act would also make permanent current transfer restrictions on Guantanamo detainees, further undermining the ability of the President to close the offshore detention facility. In our view, restricting the President in this way is unnecessary to promote a robust national security that keeps the American people safe.
 
Whatever one thinks of these various proposals in the Detainee Security Act, it is clear that they will have serious consequences and should be examined extensively. We therefore request that you use your chairmanship to immediately call hearings on Detainee Security Act so that the American people have an opportunity to consider the serious impacts that this legislation could have on our national security.
 
Sincerely,
 
Representatives John Conyers Jr. (D-Mich.), Steve Cohen (D-Tenn.), Peter DeFazio (D-Ore.), John Dingell (D-Mich.), Keith Ellison (D-Minn.), Bob Filner (D-Calif.), Raul Grijalva (D-Ariz.), Alcee Hastings (D-Fla.), Maurice Hinchey (D-NY), Michael Honda (D-Calif.), Jesse Jackson (D-Ill.), Sheila Jackson Lee (D-Texas), Dennis Kucinich (D-Ohio), Barbara Lee (D-Calif.), John Lewis (D-Ga.), Jim McDermott (D-Wash.), James McGovern (D-Mass.), George Miller (D-Calif.), Jim Moran (D-Va.), Jerrold Nadler (D-N.Y.), Eleanor Holmes Norton (D-D.C.), Donald Payne (D-N.J.), David Price (D-N.C.), Bobby Rush (D-Ill.), Jan Schakowsky (D-Ill.), Bobby Scott (D-Va.), Jackie Speier (D-Calif.), Fortney “Pete” Stark (D-Calif.), Bennie Thompson (D-Miss.), Maxine Waters (D-Calif.), Henry Waxman (D-Calif.), Lynn Woolsey (D-Calif.) and David Wu (D-Ore.).

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