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After Ten Years of the War on Terror, Its Time to Scrap the Authorization for Use of Military Force

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Many Americans probably think that the “War on Terror” began on September 11, 2001, when the terrible terrorist attacks took place, whose tenth anniversary has recently been marked. However, the “War on Terror” actually began on September 14, 2001, when Congress passed the Authorization for Use of Military Force (AUMF), which authorized the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

This open-ended document is the bedrock of the occupation of Afghanistan, which began on October 6, 2001, and of the detention of prisoners in Guantánamo, as the Supreme Court confirmed in June 2004, in Hamdi v. Rumsfeld, when the Supreme Court confirmed that the AUMF also authorizes the detention of those held as a result of the president’s activities.

It has also been “cited as an authority for him to engage in electronic surveillance against possible terrorists without obtaining authorization of the special Court created by the Foreign Intelligence Surveillance Act (FISA) of 1978,” as the Congressional Research Service (CRS) noted in a report on the AUMF in 2007.

That fascinating report (PDF) also reveals that the AUMF could have been far worse, in the sense of allowing the president powers to behave as he saw fit, without the possibility that Congress could constrain him. On September 12, 2001, the White House gave a draft joint resolution to the leaders of the Senate and the House, and, as the report states, “This White House draft legislation, if it had been enacted, would have authorized the President (1) to take military action against those involved in some notable way with the September 11 attacks on the U.S., but it also would have granted him (2) statutory authority ‘to deter and pre-empt any future acts of terrorism or aggression against the United States.’”

Noting the gravity of the Bush administration’s intentions, the CRS explained,

This language would have seemingly authorized the President, without durational limitation, and at his sole discretion, to take military action against any nation, terrorist group or individuals in the world without having to seek further authority from the Congress. It would have granted the President open-ended authority to act against all terrorism and terrorists or potential aggressors against the United States anywhere, not just the authority to act against the terrorists involved in the September 11, 2001 attacks, and those nations, organizations and persons who had aided or harbored the terrorists.

As a result, the section which would have allowed the President “to deter and pre-empt any future acts of terrorism or aggression against the United States” was “strongly opposed by key legislators in Congress and was not included in the final version of the legislation that was passed.”

That was significant, and the scale of the president’s ambitions were glimpsed when, after the death of Osama bin Laden in May, some Republican lawmakers, led by Rep. Buck McKeon (R-Calif.), wanted to revive the AUMF with a much broader scope (in line with the Bush administration’s original plans), rather than accept that with the death of al-Qaeda’s leader, the AUMF was no longer needed. The difference was that Representative McKeon envisaged Congress in the driving seat, but it was still alarming that he was calling for what Spencer Ackerman of Wired described as “a big expansion of executive authority.”

I discussed the outrageous position taken by those lawmakers in an article at the time, entitled, “No End to the ‘War on Terror,’ No End to Guantánamo,” in which I also discussed the need for the AUMF to be scrapped as a justification for holding prisoners at Guantánamo neither as prisoners of war nor as criminal suspects.

This has been a long and lonely campaign on my part, as it is outrageous that, ten years after the 9/11 attacks, the legacy of the Bush administration’s reckless decision to declare that the attacks on September 11, 2001, were an act of war, rather than a crime, and to insist that it was appropriate to hold soldiers and terror suspects as “illegal enemy combatants” without rights perdures at Guantánamo.

When Barack Obama found it difficult to close the prison, he was, at least, reassured that there was nothing illegal about continuing to hold prisoners at Guantánamo, because of the AUMF, and so, ten years after 9/11, it continues to be regarded as acceptable that the soldiers held in Guantánamo are not allowed to ask when the “war” in which they were seized will come to an end, and that the actual terror suspects — a few dozen men, including those accused of masterminding and being involved in the 9/11 attacks — are supposed to be subjected to trials by military commission, while every terror suspect not held at Guantánamo is tried in federal court.

In the Nation this past September 11, John Nichols was the only mainstream journalist to take an interest in the tenth anniversary of the AUMF. He wrote that, on the eve of the 9/11 attacks, he was at a conference in Brussels, “Journalism in the Shadow of Terror Laws,” with Mary Robinson, the former Irish president and UN High Commissioner for Human Rights, whose words struck a chord with him: “I remember,” she said, “the loneliness of speaking out against the declaration of a ‘war on terrorism.’” She added, as Nichols described it,

The language we use to characterize events defines our response to them and when crimes against humanity were defined as acts of war … then an appropriate demand that those responsible for horrific violence be brought to justice was replaced with the overwrought and overarching demands of “a perpetual war of terror.”

Homing in on the Congressional approval of the AUMF on September 14, 2001, Nichols noted that this “perpetual war” has not only had a massive human cost, but has also been a political disaster, losing “both good will and authority over the past decade,” and has also involved a staggering financial cost — more than $7.6 trillion in defense and homeland-security spending, according to “new accounting by the National Priorities Project.”

Nichols understands that America’s military-industrial complex would have found ways to try to bankrupt America without the “War on Terror,” although he is correct to explain that this “permanent war” has redefined America just as James Madison worried when he wrote in 1795, “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,” and when, in particular, he wrote, “No nation could preserve its freedom in the midst of continual warfare.”

In the United States, Congresswoman Barbara Lee (D-Calif.) was the only lawmaker to speak out against the AUMF back in September 2001, when she warned, “[We] must be careful not to embark on an open-ended war with neither an exit strategy nor a focused target. We cannot repeat past mistakes.”

Lee was threatened and ridiculed for being the sole lawmaker to vote against the AUMF, but she has now submitted legislation calling for the AUMF to be repealed. “In reflecting on the rush-to-war in Afghanistan and President Bush’s misguided war-of-choice in Iraq,” she said, “my worst fears have unfortunately been realized.” She added,

Over the past [decade], this broad authorization of force has had far-reaching implications which shake the very foundations of our great nation and democracy. It has been used to justify warrantless surveillance and wiretapping activities, indefinite detention practices that fly in the face of our constitutional values, extrajudicial targeted-killing operations, and a policy of borderless and open-ended war that threatens to indefinitely extend U.S. military engagement around the world.

Lee concluded, “It is time for Congress to reexamine, and ultimately repeal this flawed authorization. The alternative, to concede Congress’s constitutional responsibilities and blindly accept the persistence of war without end, is unacceptable.”

It remains to be seen whether the mainstream media will pick up on Lee’s proposal, or whether they will continue to allow themselves to be distracted by the self-serving lies of former Vice President Dick Cheney. This time around, as John Nichols explained, she has the support of 14 co-sponsors for her bill — 13 Democrats and 1 Republican.

That is an improvement, but much more interest is needed if this dreadful legislation — the justification for “perpetual war,” indefinite detentions at Guantánamo, and the warrantless wiretapping of U.S. citizens — is to be repealed, bringing the brutal and lamentable “War on Terror” to an end.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.