The House of Representatives' "affirmation" of our armed conflict with Al Qaeda and others

Here is the text of section 1034 of the National Defence Authorization Act for Fiscal Year 2012. That bill was passed (the vote was 322-96) on May 26, 2011 by the House of Representatives; a proposed amendment which would have deleted this particular section was defeated by a much closer vote of 234-187:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.

• 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.

This proposed legislation has been sharply attacked by the ACLU as a sweeping expansion of the war on terror. Since the bill was passed by the House, it now awaits Senate action -- presumably postponed by the ferocious fight over the debt ceiling. But once we escape (or fall into) bankruptcy, this issue will be back. It's been the subject of a lot of discussion already, but I think it's still worth a close look.

To begin, I want to focus on an odd feature of the legislation: It isn't, in so many words, an authorization for the use of military force as provided for in the War Powers Resolution (WPR). The WPR specifies that an authorization must actually declare, in its text, that "it is intended to constitute specific statutory authorization" for our engaging in hostilities. This section doesn't. What it does is to "affirm" that the Authorization for the Use of Military Force passed in 2001 after the 9/11 attacks -- a statute that does contain the necessary WPR specification -- actually applies to the various targets listed in the new Act. The White House has "strongly" objected to this section, saying that "in purporting to affirm the conflict, [the provision] would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion."

What difference does the odd wording make? It means that as an authorization for war, this proposed statute isn't in compliance with the War Powers Resolution. One possible result of that would be that those interpreting and applying the law would have to conclude that the statute did not add anything to the authorization contained in the 2001 statute's words; to whatever extent the new language goes beyond the old, it would simply not be binding. It might still be persuasive as to the correct reading of the old words, but it wouldn't have binding legal force as an authorization for fighting in its own right.

Another possible legal result is that it would be necessary to determine whether the War Powers Resolution's specification -- in 1973 -- of the methods by which Congress can authorize fighting is actually binding on subsequent Congresses. As a general proposition, no one Congress can deprive later Congresses of full lawmaking authority. So it might be argued that if Congress does enact this section, that will evidence Congress' decision that it prefers to use a new method -- namely what the ACLU called a "sleeper section" within a huge defense bill -- for authorizing war. Presumably Congress can do that if it wishes. The question will be whether Congress did wish to do that, or whether instead it merely wished to voice its interpretation of what the 2001 AUMF meant.

But perhaps its political purpose is clearer than its legal effect. I suspect section 1034's obscurity (both in wording and in placement in this larger statute) blunts debate -- although certainly it did not escape sharp public criticism. It also attenuates responsibility -- Congress (specifically, the Republican-controlled House) does not treat the modern equivalent of a declaration of a war as a profound decision but rather as simply a subpart of defense spending. And if the result of this statute is a dramatic expansion of the President's authority to wage war, and the nation's entanglement in war (whether this is the result I'll return to in later posts), these effects have been accomplished with as little fanfare as possible.

Given the indifference that this proposed provision suggests with regard to the requirements of the War Powers Resolution, it is ironic, to say the least, that the House has become vocally attentive to War Powers Resolution considerations as our involvement in Libya has continued. If this section winds up before the House again before its final enactment, I wonder whether legislators who in June displayed a lot of anxiety about war and Presidential warmaking will still be happy with their handiwork from late May.