[Congressional Record Volume 157, Number 74 (Thursday, May 26, 2011)]
[Extensions of Remarks]
[Pages E962-E963]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

                                 ______
                                 

                               speech of

                         HON. HOWARD L. BERMAN

                             of california

                    in the house of representatives

                        Wednesday, May 25, 2011

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 1540) to 
     authorize appropriations for fiscal year 2012 for military 
     activities of the Department of Defense and for military 
     construction, to prescribe military personnel strengths for 
     fiscal year 2012, and for other purposes:

  Mr. BERMAN. Mr. Chair, I rise in support of the amendment to strike 
section 1034 from the bill. Let's be clear what we are debating here 
today: the bill before us would amend the authorization for the use of 
military force (AUMF) that Congress passed in the wake of the 9/11 
attacks--not just reaffirm the existing authorization.
  As a threshold matter, I question the premise for this amendment. 
Proponents argue that Congress needs to act now lest a court change its 
interpretation of the AUMF. Proponents also argue that the President 
has been hamstrung in his ability to detain and target groups linked to 
al Qaeda, like al Qaida in the Peninsula (AQAP).
  Yet Defense Department General Counsel Jeh Johnson made clear in 
public testimony that DoD has all the authority it needs to fight 
terror. And I've seen no evidence that the Administration feels any 
restraints on its ability to target threats like AQAP. In fact, the 
White House stated yesterday it ``strongly objects'' to section 1034. 
If the Administration, which stands to benefit most from the proposed 
amendment to the AUMF, is arguing against it, I have serious doubts we 
should proceed.
  I support efforts to update the AUMF of 2001. The AUMF should reflect 
the diffuse terrorist threat faced by the US today and clarify that the 
President has the authority to target

[[Page E963]]

groups closely linked to al Qaeda and the Taliban that came into being 
after 9/11 and that pose a direct threat to the United States. We 
should also update it as a matter of congressional prerogative. 
Congress should take ownership of the AUMF rather than let the courts 
and the Executive interpret the 2001 legislation unilaterally.
  At some point, congressional failure to update the AUMF could force 
the President to rely on his Article II authority to target entities 
increasingly removed from 9/11.
  But this provision in the NDAA is no way to do it.
  Sec. 1034 was advanced with no hearings in the Foreign Affairs 
Committee--the principal committee of jurisdiction--and with only a 
passing mention in an Armed Services Committee hearing.
  There's been no floor debate beyond this amendment, and no 
opportunity for the Administration or outside experts to weigh in.