Opposing Perpetual War: FCNL Letter to House Armed Services Committee

Members
House Armed Services Committee
U.S. House of Representatives
Washington, D.C. 20515

Dear Representative:

We write to oppose Section 7 of H.R. 968, "Affirmation of Armed Conflict with Al-Qued, the Taliban, and Associated Forces," and to urge that this section not be included in the National Defense Authorization Act or approved in any other form.

This legislative language does not simply affirm current law; it would grant the president broad new authority to engage in unlimited military conflict for an unlimited time against a wide array of individuals and groups that may at some time engage in hostilities against the U.S. or allies. The language cedes significant congressional authority to the President, beyond what was authorized in the AUMF.

Military operations in Afghanistan, Iraq, Pakistan, and other venues are currently predicated on the authorities described in the Authorization of the Use of Military Force (AUMF) adopted in September of 2001. The proposed legislation differs from the AUMF in several important respects:

• Time frame: The AUMF authorized a military response to the September 11,2001 attacks on the United States. The specific focus of the authorized response was the perpetrators of the attacks, and those who authorized or aided the attacks. The purpose of authorizing that focus was in order to prevent future acts of international terrorism against the U.S. The language in Section 7 significantly expands this specific attack-related authorization to allow the president to commit U.S. troops .without further consultation with or approval by Congress -- predicated on other, later incidents or potential incidents.
• Focus of conflict: The AUMF does not name the Taliban, Al-Queda or any other organized group. Instead, its authority extends to perpetrators of the 2001 attacks and those who aided and abetted the crime. Ten years after the attacks, the link between current participants in some of these sub-state groups and the 2001 attacks is less clear. Neither this nor future administrations should be given a blank check to continue or expand military action without explicit Congressional authority. Section 7 cedes future broad powers to the executive branch.
• Defense of the U.S. vs. defense of a broader international coalition: The AUMF refers only to attacks on the U.S. Section 7 of H.R. 968 affirms an authority to pursue "belligerents" who support hostilities against "the United States or its cobelligerents" (undefined, but presumably referring to U.S. allies.)
• Over inclusive language:The language of the bill affirms the president's authority to "detain belligerents, including" those who support hostilities against the U.S. and its cobelligerents, as described in earlier paragraphs. The term "belligerents" is not defined; the construction of the section suggests virtually unlimited application of the term, including to individual U.S. citizens who are who are considered "belligerent" by this or a future administration. This broad, probably unintended, application would nonetheless be authorized if this language were to be adopted as written.
• Indefinite detention: The AUMF was silent on the president's authority to hold captured persons without charges or trial. Under the provisions of the Geneva Conventions, prisoners of war may be held for the duration of a conflict. The Geneva Conventions, however, apply to inter-state conflicts, in which there are organized governing parties that can agree to a truce, surrender or other cessation of hostilities. In a conflict with a number of named and unnamed sub-state groups and networks, there will be no such end to the conflict. There are no governing parties who can agree to stop that evolving and expanding war. Therefore, authority to detain an individual until the "termination of hostilities" is a life sentence.

The laws of war and the laws of civil justice have been conflated in the struggle to respond to and control terrorism. In the rules of war, the threshold at which individual fighters are held responsible for actions that would otherwise be criminal acts is higher. They may be captured and held within certain standards, and then released when their respective governments resolve their differences. The U.S. military has been very adamant in defense of this protection.

The current conflicts with non-state actors do not fit neatly within the laws of war. Military commissions, for example, seek to hold individual "enemy combatants" responsible for activities that, within the laws of war, would be considered the responsibility of a warring nation-state. Individual responsibility for actions, in our democratic society, is determined through civil justice system, in which individuals are held responsible for criminal acts and violence is not excused because it carries out a political or ideological aim. Individuals are tried on charges, punished if convicted, and released when their sentences have been served. Civil justice is a critical element of democracy; violation of its principles severely weakens the fabric of the society we all value and want to protect.

Ten years after September 11, we at FCNL encourage Congress to seek to restore the rule of law and become a full partner again in the nation's decisions with respect to the use military force. As you move forward, we at FCNL urge you to integrate the most essential elements of a democratic society in your responses to criminal and terrorist acts. We urge you to preserve the authority of Congress to govern when, how, and to what end military force is used, and to uphold the role of the Judiciary branch to determine the consequences, within law, for those convicted of violent crimes.

Respectfully,

Ruth Flower
Legislative Director