[Congressional Record Volume 157, Number 75 (Friday, May 27, 2011)]
[Extensions of Remarks]
[Page E965]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012

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                               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 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.
  This is not the way Congress should authorize an expansion of the 
President's authority to use force.
  And make no mistake: that's exactly what we're doing here, even if 
the proposed authority is consistent with how courts have interpreted 
the original AUMF.
  The 2001 AUMF makes no reference to associated forces, nor does it 
authorize the President to attack nations, organizations, and persons 
who are substantially supporting al Qaida or the Taliban.
  We need to examine these provisions closely, some of which could have 
unintended consequences and which remain cutting edge legal theories. 
For example, Sec. 1034 authorizes the President to use force against 
``nations who are substantially supporting the Taliban''.
  Would that allow the President to use force against Pakistan or Iran 
if they were providing material support to the Taliban?
  That isn't what I signed up for when I voted to authorize the 
President to attack those responsible for 9/11 in the original AUMF.
  With adequate due diligence, I would support giving the President 
authority to target so-called ``associated forces''. Indeed, the 
concept of co-belligerency is one well-founded in the laws of war, at 
least against nations. I could even envision authorizing the detention 
and targeting of those substantially supporting al Qaeda, as the McKeon 
provision suggests.
  But there should be limits to these authorities. We need to ensure a 
sufficient link between an associated force and the Taliban or al 
Qaeda, and that such a group is hostile to the United States. We also 
need to make sure there are clear ways to determine whether an entity 
is ``substantially supporting'' al Qaida. At a minimum, I would urge my 
colleagues to place a time limit on such authorities. I want to make 
sure we are not extending a war--something Jihadists might welcome--at 
the exact time when we should be narrowly focusing our counterterrorism 
efforts.
  I tried to work with my colleagues to find a mutually agreeable text, 
one that would restrict the proposed text while addressing the 
proponents' interest in incorporating ``associated forces'' and 
detention authority into the 2001 AUMF.
  Given the late hour, we could not reach a deal. But I remain willing 
to work with my counterparts across the aisle to find a mutually 
agreeable, bipartisan text.
  Mr. Chairman, in light of the flawed language in Sec. 1034, and the 
equally flawed process, I urge my colleagues to support this amendment 
to strike that section from the bill.

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