May 20 2011
Washington, D.C. – Language included in the National Defense Authorization Act for Fiscal Year 2012 affirming the President’s authority to prosecute the war on terrorism has drawn praise from one of the nation’s top legal experts. In a letter to Armed Services Committee Chairman, Rep Howard P. “Buck” McKeon (R-Calif), former U.S. Attorney General Michael Mukasey praised the language, which seeks to reinforce the President’s authority pursuant to the 2001 Authorization for the Use of Military Force (AUMF). The legislation clarifies the AUMF passed after September 11th, 2001, which enshrined the President’s legal authority to pursue terrorists and their allies.
Former Attorney General Mukasey, who is also a former U.S. district court judge, said that the new language “would not confer new powers, but rather would add order and rationality to what has been an improvisational exercise by judges who do not have the fact finding resources of Congress, or the accountability that comes from being responsible for national security.
“Since its passage, the AUMF has not been updated to reflect the evolving nature and origin of the Islamist threat against this country.
“Indeed, there are organizations, including the Pakistani Taliban, that are arguably not within its reach, and although we have fought and detained thousands of enemy fighters captured not only in Afghanistan and Iraq, but also in Somalia, Yemen and Pakistan, and continue to detain hundreds, the AUMF does not even refer to detention, let alone prescribe standards for detention.
“As a result of this inaction, we have simply allowed policy makers and judges to improvise how we deal with the evolving terrorist threat and how we treat those we encounter on the battlefield.
“I cannot for the life of me understand the opposition to this measure that is coming from people who profess to be concerned with civil liberties and the rule of law, and yet seem to prefer an improvisational arrangement that does not make us face up to the fact that we are detaining people. If anything, such a system creates the occasion for off loading our detention responsibility to countries that will treat detainees much less humanely than we would, or killing instead of capturing, which can hardly be said to present a humane alternative or one governed by legal principles.”