5-23-2011By Daphne Eviatar
Senior Associate, Law and Security Program
Cross-posted on The Huffington Post
While Congressional Republicans argue publicly they’re not seeking to expand the war on terror beyond its current parameters, they’re quietly making clear elsewhere that they intend to do just that.
In a letter to Attorney General Eric Holder, five Republican Senators last week urged the nation’s chief prosecutor not to prosecute a suspected high-ranking member of Hezbollah in a civilian federal court, where the Department of Justice has for the last decade successfully tried more than 400 international terrorists. Instead, they argue, as a Hezbollah operative who trained Iraqi extremists in terrorist tactics and organized a kidnapping that resulted in the deaths of Americans, Ali Mussa Daqduq’s actions “clearly defy the laws of war” and therefore should be tried in a Guantanamo Bay military commission.
There are many problems with this letter. The first is that the senators don’t seem to understand that the federal War Crimes Act was specifically enacted to prosecute war criminals in federal court, not in military commissions. The Military Commissions Act, on the other hand, created jurisdiction only over “alien unprivileged enemy belligerents” – that is, individuals with whom the United States is currently at war.
But more important than the jurisdictional question is the implication of what the Senators are pressing for. For the United States to try Daqduq in a military commission would be tantamount to the president declaring that the United States is at war with Hezbollah. Although first deemed a terrorist group by the United States in 1999, Hezbollah was removed from the list of designated foreign terrorist organizations after strongly condemning the September 11, 2001 terrorist attacks. President Bush returned Hezbollah to the list shortly thereafter. But the Lebanon-based Islamic militant group has never- at least not yet – been among the terrorist organizations with which the United States has considered itself at war. If the supporters of a provision of the Defense Authorization Act being debated in Congress this week have their way, that could soon change.
The Authorization for the Use of Military Force, or AUMF, enacted by Congress in 2001 allows the U.S. military to wage war 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. . .”
Hezbollah clearly does not fall within that description. But the bill now making its way through Congress – supported by House and Senate Republicans plus several prominent former Bush Administration officials — would provide a new Authorization for the Use of Military Force. And under that new war authority, Hezbollah–and its longtime sponsor, the Iranian government–could very well fall into the category of those against whom we’re fighting an indefinite war.
Supporters of the new authorization – including House Armed Services Committee chairman Howard P. “Buck” McKeon, former Attorney General Michael Mukasey and Brookings Institution fellow Benjamin Wittes — like to play down that idea, claiming the proposed legislation would merely codify what is already the Obama administration’s understanding of the current war. But it’s clear that the purpose of the McKeon legislation is to divorce the use of military force from the September 11 attacks. By doing that, Hezbollah, Iran and myriad other terrorism-supporting groups or nations could suddenly fall under that very large and indefinitely expanding umbrella.
The proposed law would authorize the use of military force against “nations, organizations, and persons who–
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A)”
There is no definition in the legislation of “associated forces” or explanation of what constitutes “substantial” or “direct” support. And since Daqduq, Hezbollah and the Iranian government have all been described by U.S. government officials as assisting terrorists in Iraq to fight U.S. forces, the new law could certainly be interpreted to include them.
So far, the current war against al Qaeda, the Taliban and “associated forces,” has not been interpreted by the Obama administration as including Hezbollah. Because the original AUMF is tied to groups that participated in the Sept. 11 attacks, President Obama would presumably need to go to Congress if he decided at some point that he wanted to substantially broaden the scope of the war – for example, to attack Iran. But the proposed legislation being pushed by McKeon and others would allow the president to circumvent that process. It would, in effect, be a blank check for the president to declare war against any entity he deemed a threat to the United States or supporter of anti-U.S. terrorism.
The other worrisome aspect of the Republican senators’ letter to Attorney General Holder is that it suggests that the Justice Department cannot make decisions about whom to prosecute without first consulting with the Defense Department. That’s not the case now, nor should it be. The Justice Department has far more experience investigating complex cross-border terrorism and terrorist financing than the Pentagon does. It’s no wonder that military commissions have prosecuted only six individuals on terrorism-related charges since 9/11, whereas civilian federal prosecutors have won the convictions of more than 400. But if the proposed McKeon legislation were signed into law, such advance “consultation” with DoD would be required — and could significantly limit the ability of the United States to investigate, thwart and prosecute terrorists effectively in the future.
Supporters of the far-reaching Defense Authorization Act provisions being debated in Congress this week like to argue that they would merely re-assert the status quo, because that sounds safe. But it’s not. As this latest letter from Republican senators highlights, handing the President a blank check to go to war against as-yet unnamed enemies of the United States for the indefinite future never could be.
Cross-posted from Huffington Post.