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Obama War Powers Under 2001 Law 'Astoundingly Disturbing,' Senators Say

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WASHINGTON -- The war authorization that Congress passed after 9/11 will be needed for at least 10 to 20 more years, and can be used to put the United States military on the ground anywhere, from Syria to the Congo to Boston, military officials argued Thursday.

The revelations came during a hearing before the Senate Armed Services Committee and surprised even experts in America's use of force stemming from the terrorist attacks in 2001.

"This is the most astounding and most astoundingly disturbing hearing that I've been to since I've been here. You guys have essentially rewritten the Constitution today," Sen. Angus King (I-Maine) told four senior U.S. military officials who testified about the 2001 Authorization to Use Military Force and what it allows the White House to do.

King and others were stunned by answers to specific questions about where President Barack Obama could use force under the key provision of the AUMF -- a 60-word paragraph that targeted those responsible for the 9/11 attacks.

"I learned more in this hearing about the scope of the AUMF than in all of my study in the last four or five years," said Harvard Law professor Jack Goldsmith, who was called by the committee to offer independent comments on the issue. "I thought I knew what the application [of the AUMF] meant, but I'm less confident now," he added later.

Concerns emerged largely from questions by senators who approve of an aggressive strategy to combat terrorism, including Sen. Lindsey Graham (R-S.C.), who asked if the AUMF gave Obama the authority to put "boots on the ground" in Yemen or the Congo.

Robert Taylor, the acting general counsel for the Department of Defense said yes, as long as the purpose was targeting a group associated with al Qaeda that intended to harm the United States or its coalition partners.

"Would you agree with me, the battlefield is anywhere the enemy chooses to make it?" asked Graham.

"Yes sir, from Boston to FATA [Pakistan's federally administered tribal areas]," answered Michael Sheehan, the assistant secretary of defense who oversees special operations.

Sen. Joe Donnelly (D-Ind.) later raised the specter of the AUMF being used to intervene in Syria, where the group Al Nusra, believed to be affiliated with Al Qaeda, is active. Al Nusra has not been linked to 9/11.

Sheehan said yes, if defense officials determined the group was becoming a threat. The same criteria applied to other groups, even if they were locally focused and operating in other nations. Taylor confirmed that AUMF also would cover individuals, even those who had not been born by 9/11, if, as Sen. Tim Kaine (D-Va.) asked, they someday were to "become associated with a group that associates with Al Qaeda."

When asked about an expiration date for the war authorization, Sheehan said it would be when al Qaeda had been consigned to the "ash heap of history." "I think it's at least 10 to 20 years."

While none of the senators suggested dialing back efforts to stop terrorists, they were clearly disturbed at the power being asserted by the military.

"I'm just a little old lawyer from Brunswick, Maine, but I don't see how you can possibly read this to be in comport with the Constitution," King said, arguing that the defense officials' interpretation of the AUMF makes the war power of Congress "a nullity." "Under your reading, we've granted unbelievable powers to the president and it's a very dangerous precedent."

Kaine found the suggestion that the AUMF could be used to go into Syria especially disturbing. "The testimony I hear today suggests the administration believes that they would have the authority to do that," Kaine said. "But I don't want us to walk out of the room leaving an impression that members of Congress also share the understanding that that would be acceptable."

The DOD officials repeatedly defended the authority they've claimed, noting that al Qaeda is not a traditional enemy, and that it shifts locations and changes its tactics. The broad interpretation of the AUMF, they argued, gives them the flexibility to deal with the changing threat in a lawful, effective manner.

But even Sen. John McCain (R-Ariz.), who generally agrees with Graham in pursuing a vigorous war on terror, said the AUMF has been stretched past the breaking point.

"This authority ... has grown way out of proportion and is no longer applicable to the conditions that prevailed, that motivated the United States Congress to pass the authorization for the use of military force that we did in 2001," McCain said.

"For you to come here and say we don't need to change it or revise or update it, I think is, well, disturbing," McCain said, noting that the AUMF also is used to justify things like drone strikes that were never contemplated by Congress. "I don't blame you because basically you've got carte blanche as to what you are doing around the world."

No one suggested specific solutions, but did say the Senate will deal with the problem later this year when the committee takes on the National Defense Authorization Act for 2014.

The broad assertion of authority by the military is likely to disturb civil libertarians on the left and right who have complained that the AUMF and a previous version of the NDAA give the military power to indefinitely detain U.S. citizens. Obama has issued orders banning such practices, but DOD officials apparently believe the law grants them the power to act anywhere.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

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