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House Wrestles Over War-on-Terror Measure

by Josh Gerstein and Charles Hoskinson

House Republican leaders will attempt Thursday to beat back an effort by Democrats and at least a few GOP lawmakers to defeat a legislative proposal that critics contend will expand and indefinitely extend the war on terror.

“This monumental legislation — with a large-scale and practically irrevocable delegation of war power from Congress to the President — could commit the United States to a worldwide war without clear enemies, without any geographical boundaries (the use of military force within the United States could be permitted), and without any boundary relating to time or specific objective to be achieved,” the coalition of civil liberties and human rights group wrote Wednesday in a letter to House members. (AP photo) The update to the Authorization for Use of Military Force — passed three days after the terrorist attacks of September 11, 2001 — is part of the annual defense policy bill that the House Armed Services Committee approved 60-1 earlier this month.

The fate of the new use-of-force provision could signal whether the U.S. intends to press on with a largely military approach to the war on terror in the wake of Osama bin Laden’s death, or whether lawmakers are prepared to gradually rein in the conflict.

Democrats on the panel didn’t put up much of a fight in committee, but since then they have introduced a series of amendments aimed at nixing both the updated use-of-force authorization, which they argue is too broad and open-ended, and other language that limits President Barack Obama’s power to release Guantanamo prisoners abroad or bring war-on-terror prisoners to the U.S. for trial.

GOP lawmakers who drafted the use-of-force update say it’s a needed revision and affirmation as the 10th anniversary of the Sept. 11 attacks approaches, since the connection between those strikes and the terrorists the United States is now fighting is becoming less obvious.

“I don’t think anyone can legitimately argue it does not need to be updated,” Rep. Mac Thornberry (R-Texas) said in an interview Tuesday. “What this language does is make clear the authority for what we are doing right now.”

The language in the defense bill also explicitly endorses the president’s right to take prisoners and hold them “until the termination of hostilities.” It could also support military action against terrorists not directly related to Sept. 11.

But a coalition of civil liberties and human rights groups led by the American Civil Liberties Union opposes the revamped measure.

“This monumental legislation — with a large-scale and practically irrevocable delegation of war power from Congress to the President — could commit the United States to a worldwide war without clear enemies, without any geographical boundaries (the use of military force within the United States could be permitted), and without any boundary relating to time or specific objective to be achieved,” the coalition wrote Wednesday in a letter to House members.

Opponents got a boost Tuesday when the White House threatened to veto the defense bill if it clears Congress with provisions that “challenge critical executive branch authority.” A statement of administration policy identified those provisions as the ones that relate to detainees. The administration’s official position paper said it “strongly” opposes the reauthorization because it would “effectively recharacterize [the conflict’s] scope and would risk creating confusion regarding applicable standards.”

Advocates said Tuesday’s statement was the first official veto threat by the administration against legislation that would limit its authority to handle detainees.

It was not entirely clear from the White House statement whether the veto threat applies to the use-of-force provision or solely to the detainee-related language. A White House spokesman said Tuesday he is not permitted to expand on or clarify the written statement.

However, one administration official familiar with the deliberations said officials are concerned that the proposed language could have unforeseen implications.

“The bill was rushed through,” said the official, who spoke on condition of anonymity. It “sounds reasonable, but when you look at the consequences that emerge, the more you look, the worse it gets.”

The official said the proposal could be read to authorize military action against any country or individual who supported Al Qaeda or affiliated groups in any way. “Who does it end up with?” the official asked, noting that even when the U.S. was at war in Korea and Vietnam, America did not declare war against all communist governments and sympathizers worldwide.

An amendment to strip out the measure passed the House on a preliminary voice vote Wednesday night, but a formal roll call vote on the issue is expected as soon as Thursday morning.

The chief sponsor of the amendment, freshman Rep. Justin Amash (R-Mich.), warned that the bill’s language amounts to “perhaps the broadest authority for the use of military force Congress has ever considered.”

Amash said it would permit military action not just against Al Qaeda and the Taliban, but an undefined category of “associated forces [that] don’t need to be connected to 9/11, associated forces don’t need to have fought against the United States and associated forces may even include American citizens.”

But House Armed Services Committee Chairman Buck McKeon (R-Calif.) said the bill’s definition of which entities the U.S. is engaged in armed conflict with came directly from one the Obama administration has advocated in court.

“This section does not alter the way the war on terror is currently being fought,” McKeon said during a floor debate Wednesday night. “While the courts have accepted the administration’s position, that could change any day. I’m not willing to take that chance.”

Rep. Barbara Lee (D-Calif.), the only lawmaker to vote against the measure in 2001, said the language in the new defense bill “goes even beyond that original authorization and amounts to a declaration of war without end anywhere in the world.” She called it “an entire checkbook of blank checks.”

Rep. Allen West (R-Fla.), who like Amash is a tea party favorite, spoke out against stripping the provision from the bill. “If we allow an amendment such as this to go forward, it would have precluded us from going in and killing the world’s No. 1 terrorist, Osama bin Laden. If this amendment passes, we will not be able to go after [Anwar] Al-Awlaki,” said West, referring to a leader of the Yemen-based Al Qaeda of the Arabian Peninsula who has reportedly been the focus of U.S. drone attacks.

Amash countered that bin Laden was killed when the original, narrower language was in effect.

The top Democrat on the Armed Services Committee, Rep. Adam Smith of Washington, said Congress should update the measure but that the implications of the GOP language could be significant. “When you put in ‘associated forces’ and you don’t have any end date, it does confer on the president the potential for a great deal of power over a long period of time,” Smith said.

One expert said the administration’s 42-word official explanation of its opposition is confusing because the language in the bill is so similar to what lawyers for the administration have argued in court.

“They cannot possibly be strongly opposed to writing their litigating positions into law. To the extent they are strongly opposed to that, they risk grossly undermining their litigating positions,” said Benjamin Wittes of the Brookings Institution.

Wittes said the administration opposition might be a tactical decision to increase the president’s chances of removing other provisions he objects to in the bill, such as continuing limits on transferring prisoners from Guantanamo to the United States for trial or detention.

He said the administration should negotiate with McKeon to craft mutually acceptable language. “They have a real allergy to dealing with the Hill on these issues. … Their mistrust of the Hill is legion and they take it too far, though they have good reason to be suspicious,” Wittes said.

The administration source acknowledged that the veto threat is undermined somewhat by Obama’s decision last year to sign legislation that limited his ability to release detainees abroad and to bring them to the U.S. for trial.

“We should have picked this fight last December but, okay, we can pick it now,” the official said. “It’s fair to hit the Obama administration for not speaking out earlier, but you’ve got to give us credit for speaking out now.”

Two other detainee-related amendments were debated Wednesday and are expected to receive roll call votes Thursday. Smith put forward language that would restore Obama’s ability to bring detainees to the United States for trial in criminal courts. And Rep. Vern Buchanan (R-Fla.) offered an amendment that would make military commissions the only trial option for all foreigners who allegedly engage in terrorist acts in the United States or against U.S. personnel abroad.

Thornberry predicted that “you will see at the end of the day a pretty big bipartisan majority to pass the bill. I hope there’s not a pressure from [the Democrats’] leadership to make it otherwise.”

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