TRY SUSPECTED TERRORISTS

ANALYSIS
Authorization for the Use of Military Force
Section 1034 of H.R. 1540, the National Defense Authorization Act for the Fiscal Year of 2012
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Section 1034 purports to be an “affirmation” of the original 2001 Authorization for the Use of
Military Force (AUMF), but it is a significant and substantial grant of new authority to the
President to use military force without specific congressional approval. Section 1034 declares
that the United States is in an “armed conflict” not just with al Qaeda, the Taliban, or “associated
forces,” but also a large, vaguely defined category of nations, organizations, and persons that
“substantially support” or act “in aid of” al Qaeda, the Taliban, or “associated forces.”1 The 2001
AUMF does not provide the President with such broad war powers.
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While the original 2001 AUMF ties the use of force to those who “planned, authorized,
committed, or aided” the 9/11 attacks,2 the authority to use force provided in Section 1034 of
this bill has no tie to the 9/11 attacks or any other specific attack against or threat to the United
States. This bill, in effect, reactivates the concept of an endless “global war on terrorism.”
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The authorization for the use of force in Section 1034 is not bound by geography or alienage.3
Thus Section 1034 could authorize the President to, without further Congressional approval,
conduct military interventions in foreign countries, or use military force within the United States,
against American citizens.
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By broadly authorizing the future use of military force in undefined scenarios, against
unspecified threats, Section 1034 cedes decisions on the use of military force solely to the
President. Under the Constitution, if Congress chooses to authorize the use of military force, it
should ensure that there is a clear and specific national security threat. Congress should further
ensure that there is a strategy to enter and end any war, and that the United States has the
financial resources to deploy military assets at a time when U.S. armed forces and the federal
budget are spread thin.
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Some who support Section 1034 are claiming that it merely codifies the existing authority that
the Obama administration has asserted, and that federal courts have upheld, under the 2001
AUMF. This is false. No court has upheld a standard so broad that it would allow detention of,
for example, individuals that act “in aid of” organizations that “substantially support” the forces
“associated” with al Qaeda, as Section 1034 does.4 Section 1034 further provides that the
President has the authority to detain an undefined category of “belligerents,” including – but not
limited to – the individuals covered by the already overbroad standard in the bill. Nothing under
current law provides such broad detention authority.
National Defense Authorization Act for the Fiscal Year of 2012, H.R. 1540, Section 1034(3).
Authorization for the Use of Military Force, Pub. L. 107-40 § 2(a), 107th Cong., Sept. 18, 2001.
National Defense Authorization Act for the Fiscal Year of 2012, H.R. 1540, Section 1034.
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National Defense Authorization Act for the Fiscal Year of 2012, H.R. 1540, Section 1034(3).
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ANALYSIS
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Even if Section 1034 were codifying the detention standard put forth by the Obama
administration and upheld by federal courts, it is inappropriate and dangerous to use a detention
standard to define the scope of the armed conflict with al Qaeda and the Taliban. Doing so
would vastly expand the war authorities provided for under the 2001 AUMF. Even supporters of
Section 1034 concede that it could authorize wars against countries like Iran.5 Representative
McKeon, who put forth Section 1034, has suggested that it could provide for authority to use
force in Yemen and countries in Africa.6
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Some supporters of Section 1034 claim that new authority is necessary to provide U.S. forces
with the legal foundation to combat terrorism, but soldiers and counterterrorism officials already
have broad authority to target and detain suspected terrorists. At a recent hearing, Department
of Defense General Counsel Jeh Johnson stated that the Obama administration had sufficient
authority to address the existing threats.7 Moreover, under the Constitution, if the President
identifies an imminent threat to the safety of the American people, he can act without having to
seek approval or authority from Congress. Outside of battlefield scenarios, individuals that plot
terrorist attacks or support terrorist organizations are subject to criminal prosecution; new
authority is not needed to incapacitate terrorists.
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Section 1034 asserts that the United States is in an “armed conflict”8 with al Qaeda, the Taliban,
“associated forces,” and other terrorist organizations. This is an inaccurate description of the
legal status of current efforts to combat international terrorism. “Armed conflict” is a term of art
under the laws of war (also known as “International Humanitarian Law” or “IHL”). The United
States remains in a non-international armed conflict, governed by Common Article 3 of the
Geneva Conventions, with the Taliban in Afghanistan. Although some al Qaeda members are
participating in this armed conflict in Afghanistan, or from nearby countries like Pakistan, the
laws of war do not broadly apply on a global basis to all U.S. efforts against international
terrorist organizations.
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Section 1034 authorizes detention, and potentially targeting, of individuals “engaged in
hostilities” against the United States, but does not specify what it means to engage in hostilities
or whether this is limited to activities and circumstances subject to the laws of war. A similar
provision in the Military Commissions Act of 2009 defines “hostilities” to mean “any conflict
subject to the laws of war.”9 By describing supporters of al Qaeda, the Taliban, and associated
forces as “belligerents,” Section 1034 could give the mistaken impression that those who merely
provide support to terrorist organizations can be targeted with lethal force. Under the laws of
war, only those who Directly Participate in Hostilities (“DPH”) may be targeted.
Ben Wittes, A Reply to Daphne Eviatar, Lawfare Blog, http://www.lawfareblog.com/2011/05/a-reply-to-daphne-eviatar/
National Defense Authorization Act for Fiscal Year 2012 Strengthens the Nation's Terrorist Detention and Prosecution Policies, Legislative
Action Blog, House Committee on Armed Services (May 9, 2011) (“The killing of al-Qaeda chief Osama bin Laden in Pakistan and the threats
posed by al-Qaeda cells in Yemen and Africa underscore the evolving and continuing nature of the terrorist threat to the United States”).
7
See Testimony of Jeh Johnson, House Armed Services Committee Hearing on the Law of War Detention and Guantanamo Bay Overview,
March 17, 2011.
8
National Defense Authorization Act for the Fiscal Year of 2012, H.R. 1540, Section 1034.
9
Military Commissions Act of 2009, 10 U.S.C. § 948 (a)(9).
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