Published on May 17, 2013
Watch more from this Senate hearing at http://owl.li/l96qm. A Pentagon official predicted May 16 that the war against al-Qaeda and its affiliates could last up to 20 more years. The comment came during a Senate hearing revisiting the Authorization for Use of Military Force, or AUMF, enacted by Congress days after the attacks on Sept. 11, 2001. At the hearing, Pentagon officials claimed the AUMF gives the president power to wage endless war anywhere in the world, including in Syria, Yemen and the Congo. “This is the most astounding and most astoundingly disturbing hearing that I've been to since I've been here,” said Independent Sen. Angus King of Maine. “You guys have essentially rewritten the Constitution here today.”
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?