Earlier this month, the House Armed Services Committee began marking up the National Defense Authorization Act (NDAA) for 2011. Tucked inside the over 300-page bill is a provision introduced by the committee’s chairman, Rep. Buck McKeon (R - Calif.), which has some very dangerous and unconstitutional complications.
If passed, the legislation would grant President Barack Obama — and all presidents after him — sweeping legal authority to go to war in any part of the globe he chooses to without any consent or debate from Congress. In other words, it gives the president the “power to declare worldwide war without end,” as the ACLU puts it:
The proposed legislation would allow a president to use military force wherever terrorism suspects are present in the world, regardless of whether there has been any harm to U.S. citizens, or any attack on the United States, or any imminent threat of an attack.
It also expands on the Authorization for Use of Military Force (AUMF) that Congress passed just days after 9/11, which granted President George W. Bush limited authority to use military force against those directly responsible for the attacks.
In similar fashion to the speed in which Sen. Harry Reid (D - Nevada) passed an extension of the PATRIOT Act with the intent to create “as little debate as possible,” the provision in the NDAA met virtually no discussion as it was marked up literally in the middle of the night.
McKeon’s provisions (section 1034 in the bill) represents an unconstitutional grant of authority to the p resident, which has unfortunately become quite the trend in Congress. The Constitution states that only Congress can declare war, and for good reason. The president is not King, and he should not have the power to declare war on his own without the consent of the People’s House. Granting the President the authority to use lethal military force to send young Americans to war deserves the utmost scrutiny, prudence, and public debate.
Not only is war an issue that deserves more, not less, transparency, but it is also a catalyst of domestic government abuse and violations of civil liberties. War is the health of the state, as Randolph Bourne famously argued, and a nation permanently at war — as this provision promises to ensure — cannot maintain constitutional government for very long.
Surprisingly, the Obama administration is threatening to veto the NDAA if section 1034 is included in the bill. A commitment to the rule of law and constitutional principles should definitely be commended; however, given Obama’s recent actions in Libya, it’s easy to be skeptical of the White House’s position.
As the 60th day of Obama’s war in Libya approached, the Department of Justice leaked a memo arguing that Obama didn’t need to come to Congress as the already lenient War Powers Act requires. In a manner that would make Alberto Gonzalez and John Yoo proud, the Justice Department claimed that the US needed to stand behind the United Nations and defend regional stability; in other words, Congress should just stay out the affairs of the Executive Branch. The U.S. Senate, in predictably bipartisan fashion, cowered and agreed.
Although many presidents have ignored Article 1, Section 8 of the U.S. Constitution and waged war at their own discretion, section 1034 of the NDAA would essentially codify near-dictatorial powers for the presidency into law. Future presidents, Republican or Democrat, would no doubt use and expand on these powers as well as history has shown. For the sake of the rule of law and the checks and balances of constitutional government, this bill must be opposed.
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