The uncontested heavyweight champion principle of American Constitutional interpretation has been that when undefined powers are granted, the broadest definitions will be applied to justify sweeping uses of that power.
Think how constitutional phrases and terms like “general welfare,” “necessary and proper,” “take Care . . . faithfully executed,” “lay and collect Taxes” (and the list could go on) could be and have been abused.
Thomas Jefferson wrote to Justice William Johnson in 1821 lamenting the loss of states’ rights due to loose constitutional construction. He noted, “The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They were not lessoned yet by Cohen’s case, nor aware of the slipperiness of the eels of the law.”
It seems we have still not been “lessoned.” One of the latest slippery eels appears in the so-called “indefinite detention” clause of the National Defense Authorization Act (NDAA 2012) (and what a great environment for an eel!). That law codified the assumed powers of Bush’s Authorization of the Use of Military Force (AUMF) from 2001 to specify that the U.S. government may “detain” certain persons “under the law of war.” These “covered persons” are defined (and we use the term loosely) in part as:
A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
This sounds reasonable enough, but the slippery eel detectives will immediately note that the words and phrases “associated forces,” “hostilities,” “belligerent,” and “directly supported” are themselves left undefined. What does this mean? It means the President gets to decide what they mean in how he executes the law.
Therefore, if you are brave enough, imagine the full range of possibilities when the defining is left to the Obama administration, or worse.
And then, realize that this is not imaginary at all. It is very real. It is so real that one of the chief proponents of the “detention” and “law of war” powers in the 2012 bill (renewed in 2013), perennial hawk John McCain, now says he finds the Defense Department’s unwillingness to see the law changed “disturbing.”
Keen deduction, Johnny. Just wish you would have been “lessoned” by those of us who warned you of this before you helped lead the Senate to approve it 86–13, and then renew it 98–0 in 2013.
This is exactly the issue that took center stage at last Thursday’s Senate Armed Forces Committee hearing. Consider the phrase “associated forces.” Since it was undefined by Congress, it is now an open question for the President who shall execute that law. And if the commander in chief determines that there are “associated forces” anywhere in the world, he may apply the “law of war” status to them. And indeed, this is exactly what he has been doing.
In the hearing, McCain and other Senators tried to use the language of the original AUMF to tie the hands of the President—after all, things are different when the guys from the other party are in control of the fuzzy definitions, right?
This authorization was about those who planned and orchestrated the attacks of 2011 [he misspoke; he meant 9–11 or 2001]. Here we are twelve years later, and you and the Secretary come before us and tell us that you don’t think it needs to be updated. Well, clearly it does. . . . Because it’s been so long, and because of the changing nature, and I think general Nagati would agree the nature of this conflict has changed dramatically, spread throughout northern Africa, throughout the Maghreb, it’s penetrating into other nations all throughout the Middle East—the situation has dramatically changed. So, for you to come in here and say we don’t need to change it, or revise or update it, I think is, well . . . disturbing.
But what McCain says next is debatable. He quotes Senator Dick Durbin: “Not one of us who voted for the AUMF could have envisioned we are about to give future presidents the authority to fight terrorism as far-flung as Yemen and Somalia.”
Nonsense. Within mere months after that original bill of September 14, 2001, the President and Congress were urging the expansion of its “9–11 only” stipulation to cover the invasion of Iraq. Ron Paul stood and decried this expansion on the exact reason McCain suddenly raises now twelve years after the fact. Paul said that such redefinition “only serves to divert our attention from what should be our number one priority at this time: finding and bringing to justice those who attacked the United States on September 11, 2001.”
But no one, including McCain, listened to that rationale at that time. And worse, when NDAA 2012 came along, McCain himself championed the clause which said that AUMF specifically “includes” the authorization to detain “associated forces” under law of war.
The problem is, this effectively applies all “law of war” conditions to such persons and forces, and thus, drone strikes, etc.
So when McCain followed his remarks with the question, “So we can expect drone strikes in Syria,” you can rest assured that he himself already knew the answer.
The acting general counsel for the Defense Department, Robert Taylor, responded at first with a hesitant, stuttering display on behalf of the President, stating he refused to “speculate.” This has become partisan, after all. He eventually admitted the generality: we are authorized to be at war with any forces associated with Al Qaeda.
What he should have said, boldly and forcefully is this:
Mr. McCain, you voted for the NDAA detention powers; you argued in favor of its provisions despite the warnings of members from your own party such as Rand Paul. You know good and well what it authorizes the President to do and what it leaves for him to define. You delegated to him this authority.
McCain attempted to argue that the NDAA authority was only to “detain” not to “attack.” He concludes, “This authority has grown way out of proportions and is no longer applicable to the conditions that prevail.”
Technically, “detain” is on paper. But since when did McCain become a strict constructionist? Or did he expect the Obama administration to be so when he passed that law? Or did he expect Congress would actually hold any administration to the strict construction of the statute? All of this is laughable to think.
The bottom line here is that any time any Congress leaves an undefined term in any such bill, the vastly prevailing precedent is that of very loose construction on the part of the President who is to execute that law. This problem with executive power was noted very early by opponents of the Constitution, and the U.S. government has proven them right from day one.
And thus McCain was forced to retreat somewhat from his stated assertion: “I must say I don’t blame you, because basically you’ve got carte blanche as to what you are doing throughout the world.” He was left calling for the need for a revision of the law by Congress to redefine the terms and conditions. But until it does, McCain knows that the President has these powers.
But now he faces a Democrat-controlled Senate, and one in which the very Committee policing this issue is chaired by a Democrat who agrees with the Obama administration.
This is the reason Jefferson was right about those slippery eels. Because when undefined powers are granted, the broadest definitions will be applied to justify sweeping uses of that power. It is the reason Congress should strictly define any power it creates or refuse to create it to begin with.
We all know that if men were angels, no government would be necessary. But most people stop there when quoting Madison. The next sentence says, “If angels were to govern men, neither external nor internal controls on government would be necessary.”
Indeed. And there is no place where the lack of angels is more dangerous than in the area of executive power, war, the military, and foreign policy. And there is no place where the lack of angels is more obvious today than in our Congressional-Executive complex.