Pentagon officials today claimed President Obama and future presidents have the power to send troops anywhere in the world to fight groups linked to al-Qaeda, based in part on the Authorization for Use of Military Force (AUMF), passed by Congress days after the attacks on Sept. 11, 2001. Speaking at the first Senate hearing on rewriting the AUMF, Pentagon officials specifically said troops could be sent to Syria, Yemen and the Congo without new congressional authorization. Michael Sheehan, the assistant secretary of defense for special operations and low-intensity conflict, predicted the war against al-Qaeda would last at least 10 to 20 more years. Senator Angus King (I-Maine) challenged the Pentagon’s interpretation of the Constitution and that the entire world is a battlefield. “This is the most astounding and most astoundingly disturbing hearing I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution here today,” King said. “You guys have invented this term 'associated forces' that’s nowhere in this document. … It’s the justification for everything, and it renders the war powers of Congress null and void.”
This excerpt of the hearing includes Sen. Lindsey Graham (R-SC); Robert Taylor, acting general counsel, Department of Defense; Michael Sheehan, assistant secretary of defense for special operations/low-intensity conflict, Department of Defense; and Sen. Angus King (I-Maine).
SEN. LINDSEY GRAHAM: Do you agree with me, the war against radical Islam, or terror, whatever description you like to provide, will go on after the second term of President Obama?
MICHAEL SHEEHAN: Senator, in my judgment, this is going to go on for quite a while, and, yes, beyond the second term of the president.
SEN. LINDSEY GRAHAM: And beyond this term of Congress?
MICHAEL SHEEHAN: Yes, sir. I think it’s at least 10 to 20 years.
SEN. LINDSEY GRAHAM: So, from your point of view, you have all of the authorization and legal authorities necessary to conduct a drone strike against terrorist organizations in Yemen without changing the AUMF.
MICHAEL SHEEHAN: Yes, sir, I do believe that.
SEN. LINDSEY GRAHAM: You agree with that, General?
BRIG. GEN. RICHARD GROSS: I do, sir.
SEN. LINDSEY GRAHAM: General, do you agree with that?
GEN. MICHAEL NAGATA: I do, sir.
SEN. LINDSEY GRAHAM: OK. Could we send military members into Yemen to strike against one of these organizations? Does the president have that authority to put boots on the ground in Yemen?
ROBERT TAYLOR: As I mentioned before, there’s domestic authority and international law authority. At the moment, the basis for putting boots on the ground in Yemen, we respect the sovereignty of Yemen, and it would—
SEN. LINDSEY GRAHAM: I’m not talking about that. I’m talking about: Does he have the legal authority under our law to do that?
ROBERT TAYLOR: Under domestic authority, he would have that authority.
SEN. LINDSEY GRAHAM: I hope that Congress is OK with that. I’m OK with that. Does he have authority to put boots on the ground in the Congo?
MICHAEL SHEEHAN: Yes, sir, he does.
SEN. LINDSEY GRAHAM: OK. Do you agree with me that when it comes to international terrorism, we’re talking about a worldwide struggle?
MICHAEL SHEEHAN: Absolutely, sir. [inaudible]
SEN. LINDSEY GRAHAM: Would you agree with me the battlefield is wherever the enemy chooses to make it?
MICHAEL SHEEHAN: Yes, sir, from Boston to the FATA [the Federally Administered Tribal Areas of Pakistan].
SEN. LINDSEY GRAHAM: I couldn’t agree with you more. We’re in a—do you agree with that, General?
BRIG. GEN. RICHARD GROSS: Yes, sir. I agree that the enemy decides where the battlefield is.
SEN. LINDSEY GRAHAM: And it could be anyplace on the planet, and we have to be aware and able to act. And do you have the ability to act, and are you aware of the threats?
MICHAEL SHEEHAN: Yes, sir. We do have the ability to react, and we are tracking threats globally.
SEN. LINDSEY GRAHAM: From my point of view, I think your analysis is correct, and I appreciate all of your service to our country.
SEN. CARL LEVIN: Senator King.
SEN. ANGUS KING: Gentlemen, I’ve only been here five months, but this is the most astounding and most astoundingly disturbing hearing that I’ve been to since I’ve been here. You guys have essentially rewritten the Constitution here today. The Constitution, Article I, Section 8, Clause 11, clearly says that the Congress has the power to declare war. This—this authorization, the AUMF, is very limited. And you keep using the term “associated forces.” You use it 13 times in your statement. That is not in the AUMF. And you said at one point, “It suits us very well.” I assume it does suit you very well, because you’re reading it to cover everything and anything. And then you said, at another point, “So, even if the AUMF doesn’t apply, the general law of war applies, and we can take these actions.” So, my question is: How do you possibly square this with the requirement of the Constitution that the Congress has the power to declare war?
This is one of the most fundamental divisions in our constitutional scheme, that the Congress has the power to declare war; the president is the commander-in-chief and prosecutes the war. But you’re reading this AUMF in such a way as to apply clearly outside of what it says. Senator McCain was absolutely right: It refers to the people who planned, authorized, committed or aided the terrorist attacks on September 11. That’s a date. That’s a date. It doesn’t go into the future. And then it says, “or harbored such organizations”—past tense—”or persons in order to prevent any future acts by such nations, organizations or persons.” It established a date.
I don’t disagree that we need to fight terrorism. But we need to do it in a constitutionally sound way. Now, I’m just a little, old lawyer from Brunswick, Maine, but I don’t see how you can possibly read this to be in comport with the Constitution and authorize any acts by the president. You had testified to Senator Graham that you believe that you could put boots on the ground in Yemen now under this—under this document. That makes the war powers a nullity. I’m sorry to ask such a long question, but my question is: What’s your response to this? Anybody?
MICHAEL SHEEHAN: Senator, let me take the first response. I’m not a constitutional lawyer or a lawyer of any kind. But let me talk to you a little—take a brief statement about al-Qaeda and the organization that attacked us on September 11, 2001. In the two years prior to that, Senator King, that organization attacked us in East Africa and killed 17 Americans in our embassy in Nairobi, with loosely affiliated groups of people in East Africa. A year prior to 9/11, that same organization, with its affiliates in Yemen, almost sunk a U.S. ship, the U.S.S. Cole, a billion-dollar warship, killed 17 sailors in the port of Aden. The organization that attacked us on 9/11 already had its tentacles in—around the world with associated groups. That was the nature of the organization then; it is the nature of the organization now. In order to attack that organization, we have to attack it with those affiliates that are its operational arm that have previously attacked and killed Americans, and at high-level interests, and continue to try to do that.
SEN. ANGUS KING: That’s fine, but that’s not what the AUMF says. You can—you can—what I’m saying is, we may need new authority, but don’t—if you expand this to the extent that you have, it’s meaningless, and the limitation in the war power is meaningless. I’m not disagreeing that we need to attack terrorism wherever it comes from and whoever is doing it. But what I’m saying is, let’s do it in a constitutional way, not by putting a gloss on a document that clearly won’t support it. It just—it just doesn’t—it just doesn’t work. I’m just reading the words. It’s all focused on September 11 and who was involved, and you guys have invented this term “associated forces” that’s nowhere in this document. As I mentioned, in your written statement, you use that—that’s the key term. You use it 13 times. It’s the justification for everything. And it renders the war powers of the Congress null and void. I don’t understand. I mean, I do understand you’re saying we don’t need any change, because the way you read it, you can—you could do anything. But why not say—come back to us and say, “Yes, you’re correct that this is an overbroad reading that renders the war powers of the Congress a nullity; therefore, we need new authorization to respond to the new situation”? I don’t understand why—I mean, I do understand it, because the way you read it, there’s no limit. But that’s not what the Constitution contemplates.