The Truth About AUMF and NDAA

Several times throughout his presidency, President Obama has asserted that he has the power to use lethal means (presumably including drones) to take out al Qaeda and the Taliban. His lawyers and the Attorney General have affirmed his assertion that he has that power. 

And every time one of them asserts this power, a large number of very loud liberal pundits scream and yell and blame HIM for having that power and not denying that he has it. Apparently, he’s supposed to simply reject that power, and it will magically dissolve into nothingness. By claiming he doesn’t have that power, according to them, it will cease to exist, and we will all be safe and secure, and there will be no drones from now on, and all will be peaceful and right with the world, forever and ever.

Can I get an amen?

There’s just one problem, and it’s a pretty big one.

The president and his lawyers and Attorney General Holder aren’t asserting some sort of right that doesn’t exist. They are subtly trying to remind you that they DO have that power under the law, and that if you don’t want them to have it, you’ll have to change the law. They have stated repeatedly that they don’t plan to use that power, but they do have it.

Take the hint. Obama doesn't want the power. He doesn’t feel the need to use the power. But they do have it, which means the power will exist, even  after he’s no longer president.

Can I get a wink wink nudge nudge.

There are a lot of people who write about liberal/progressive politics these days who either don’t know anything about basic civics, or pretend they don’t in order to get a segment of rank-and-file liberals upset and motivated to go their website repeatedly, to be told whatever they presumably want to hear. I suspect it’s the latter, because a lot of these people seem to have too much education to not know basic civics. And that means they’re lying to you to make themselves more popular, and to make more money. 

When they excoriate President Obama for claiming he has the power to go after terrorists on US soil, they are misleading you. Obama is telling you the truth. He’s telling you how things are. And he’s challenging you to do something about it. He’s challenging you to call Congress and repeal the law that gives him that power, if you don’t like it.

Yelling at Obama does absolutely nothing  to change the law.  If you want him to no longer have that power, then you should be directing your efforts to getting Congress to change it or repeal it. Of course, you’ll also have to get a Congress made up of politicians who actually want to repeal it, which means getting rid of as many right wing Republicans as possible.

Oh, and the law you’ll have to repeal is not the NDAA, which so many lefties point to as the be all and end all of evil lawmaking. You’ll have to repeal the Authorization for Use of Military Force (AUMF).

The AUMF became law on September 14, 2001, so you can guess how inappropriate it is. In an emotional response to the terrorist attacks that occurred a week earlier, lawmakers passed an ill-advised law. Here is the full text of the AUMF. It’s short and sweet, so it won’t take you long to read. Pay special attention to the following paragraph (I have emphasized an important word in that paragraph:

    (a) IN GENERAL- That the President is authorized 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.

Now, can you see the problem? Basically, anyone whom any president sees as a potential terrorist can be targeted, whoever they are and wherever they are. Anyone. It’s open ended. Then there’s that last sentence. Basically, he can do anything he wants to prevent future acts of terror.  While you’re looking at the AUMF, scroll up a bit and check this out:

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad;

That’s pretty important, because it makes clear that Congress intended that the president exercise his authority anywhere HE found terrorists. That means, thanks to the AUMF, the president has the power to to use  “all necessary and appropriate force” against anyone HE determines is a terrorist. When President asserts that he has such power, he’s not trying to intimidate anyone, he’s stating fact. He DOES have that power. And if he simply ignores it and chooses not to exercise it, it doesn't go away. The next president will have that power, and may actually use it. That's probably why the President is mentioning this. It's his way of saying, "Hey boneheads! I don't plan to do this, but you might want to address this before President Jeb Bush takes office!"

The AUMF needs to be repealed, and only Congress can do that. It’s simply not possible for the President to declare that he no longer has the power, and make it disappear.

I have already written extensively about the NDAA and the hysteria that still surrounds it in some circles, but I want to bring up a couple of things. First of all, as you can see, the AUMF gives the president very broad powers regarding terrorism, and the language in the 2012 NDAA doesn’t expand those at all. Not one little bit. 

But as I pointed out before, these NDAA, um, opponents always cite subsection (c)(1) in Section 1021 as being the linchpin that makes this bill so horrifying. Here is Subsection (c)(1);

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

Do you really need a translator? Why is this so difficult to understand? If you get rid of the AUMF, the above has absolutely no meaning.  Case closed. Well, kind of.

I reality, that section of the NDAA has absolutely no force of law, anyway. It has already been invalidated by a federal court, because the concept was already struck down by the Supreme Court in 2006, in Hamdan v Rumsfeld. In that case, the Court determined that all detainees were entitled to a trial,that they could not be held indefinitely, and that the president had no authority to conduct a kangaroo court. So, no; it's not possible for anyone to hold detainees indefinitely. 

The NDAA that was finally passed and signed by the president was actually far better than the one that he had threatened to veto, anyway. If you want to see a truly egregious bill, read HR 1540, which passed the House in May 2011. Anyone who thinks the mild detainee provisions in the final bill were bad, I urge them to scroll down to sections 1034 through 1042 of the House bill. They would have effectively declared any terrorist as affiliated with either al Qaeda or the Taliban, would have more or less permanently prevented the president from bringing any terrorists to trial in the United States, and would have explicitly required the indefinite detention of anyone determined to be a “terrorist.”

Before you castigate President Obama for what he signed, you really have to look at what the President threatened to veto.

Again, if you don’t want the President to have the power to use force against terrorists on US soil, then stop whining about the NDAA. We have to get rid of the AUMF. But in order to do that, we’re going to have to change the makeup of Congress, which means winning elections against the right wing-led Republican Party.

President Obama doesn’t want the immense power he’s been given. That’s obvious, because he doesn't really use it to any unacceptible extent. And he’s been challenging us for years to take it away from him. Some folks just too blind to see it. If you don’t want him to have it, then take it away. Repeal the AUMF.


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