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US Sens: Pentagon Attempting to 'Rewrite the Constitution'

May. 16, 2013 - 03:45AM   |  
By JOHN T. BENNETT   |   Comments
Sheehan, Michael
Michael Sheehan is assistant defense secretary for special operations and low-intensity conflict. (Department of Defense)
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WASHINGTON — US senators blasted senior Pentagon legal officials Thursday for suggesting the 2001-passed measure authorizing the war on al-Qaida would justify American ground operations anywhere in the world.

The Obama administration’s armed drone program, which reaches from Afghanistan to Pakistan to Yemen to Somalia, has prompted many Republican, Democratic and Independent senators to question whether the post-9/11 authorization for the use of military force (AUMF) resolution is outdated.

Michael Sheehan, assistant defense secretary for special operations and low-intensity conflict, and Acting Pentagon General Counsel Robert Taylor delivered this message on Capitol Hill: The 2001 resolution covers any US military action the president deems a move against al-Qaida, no matter where it may occur.

Worried about the legality of the armed drone program and some covert missions in places not covered by the text of the 2001 measure, senators are eying either a new resolution or an update to the existing one.

But Sheehan, Taylor and several senior uniformed military legal officials pushed back, telling the committee the Pentagon believes the 2001 resolution covers any mission as long as the commander in chief says it does.

“At this time, we don’t believe it would [enhance] our ability” to target al-Qaida leaders and operatives, no matter where they are located, Sheehan said.

The 2001 AUMF states “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.”

Senators are concerned the armed drone and covert action programs in places such as Yemen and Somalia — they also made veiled references to such operations elsewhere — violate the post-9/11 force authorization measure.

The U.S. Constitution hands the power to declare war to the Congress. The 2001 resolution, legal scholars agree, essentially declared the war in Afghanistan and some operations in Pakistan targeting al-Qaida.

But, as Sens. John McCain, R-Ariz., and Angus King, I-Maine, noted during a Senate Armed Services Committee hearing on possible AUMF changes, it might not cover operations in Yemen, Somalia and beyond.

King lashed out at Sheehan, Taylor and other DoD witnesses, accusing them of attempting to alter the Constitution.

“This is the most disturbing hearing I’ve been to in some time,” an angry King said. “You guys have rewritten the Constitution today,” he added, noting Congress’ constitutional authority to declare war.

“I assume [the 2001 measure] does suit you well because you’re reading it to fit everything, and it doesn’t, the general rule of war applies,” King said.

Sheehan coolly replied that al-Qaida already had a foothold in Yemen in September 2001, saying that means the existing resolution covers any U.S. military or covert mission there.

McCain said the 2001 resolution “clearly” needs to be revised “because of the changing nature” of the fight against al-Qaida.

“It has spread throughout North Africa, throughout the Maghreb,” McCain told the DoD witnesses. “The situation’s changed dramatically.

“For you to come here and say, ‘We don’t need to change it,’ I think, is disturbing.”

Sheehan told McCain Pentagon legal officials “have reviewed it” and have determined the existing resolution is sufficient for the military’s needs.

But senators are concerned that reading is illegal.

A fiery McCain said he is worried the Pentagon wants to maintain the status quo because the 2001 AUMF gives the military “carte blanche” to do anything it wants around the globe.

A befuddled McCain told the Pentagon officials: “I’m not sure why you’d oppose a revision.”

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