Critics say one GOP-sponsored proposal amounts to a full-scale declaration of war. | AP Photos GOP seeks to redefine war on terror

A little over a week after the United States finally succeeded in its long-sought goal of killing Osama bin Laden, Congress is set to engage in a debate over whether to extend the war on terror indefinitely or leave in place legislation that could eventually wind it down.

Enacted over a lone dissenting vote just three days after the 2001 attacks on the World Trade Center and Pentagon, the “Authorization for the Use of Military Force,” or AUMF, authorized President George W. Bush to use “all necessary and appropriate force” against those involved in the 9/11 attacks as well as anyone who harbored the perpetrators.


Even now under President Barack Obama, that language serves as the central basis for the war in Afghanistan as well as the detention of Al Qaeda suspects captured around the world and taken to the prison in Guantanamo Bay. But Republicans think it is time for Congress to revisit the resolution, reigniting a debate about the nature of terrorism, its ultimate threat to the United States, and how it should be combated – by military means or more conventional law enforcement techniques.

“It’s been a decade…. Bin Laden is gone. We need to update the law,” said Rep. Mac Thornberry (R-Texas.), who’s supporting language that he says would reaffirm and clarify the 2001 resolution. The proposal is part of the defense authorization bill House Armed Services Committee Chairman Buck McKeon (R-Calif.) released Monday, which that panel is is set to mark up on Wednesday.

Experts say leaving the current AUMF in place could at some point end the war on terrorism as it is currently defined since the connection of terror suspects and their organizations to the September 11, 2001 attacks is likely to become more and more remote. Without a congressional authorization, a president might opt for different approach to counter-terrorism, or be obliged to follow less aggressive tactics against individuals or groups that were not affiliated with Al Qaeda or the 9/11 attacks.

The new language drops any reference to 9/11 and “affirms” a state of “armed conflict with al-Qaeda, the Taliban and associated forces.” The measure also explicitly gives the president the right to take prisoners “until the termination of hostilities” – something the courts have found to be implicit in the current version of the AUMF, though the new proposal could be seen to extend that power.

The revision is justified, according to Thornberry, because Al Qaeda is increasingly decentralized and because some dangerous splinter groups aren’t obviously connected to the 2001 attacks.

“We cannot relax just because bin Laden is no longer in the picture,” Thornberry told POLITICO Monday.

“Think about Anwar Al-Awlaki out of Yemen who is sending suicide bombers on airplanes and toner cartridges through the mail to blow people up. Is that connected to 9/11? I think it’s basically a matter of common sense that we need to update the law and not really break new ground but shore up the ground we’ve been standing on,” Thornberry said.

But critics say the Republican-sponsored measure amounts to the first full-scale declaration of war by the U.S. since World War II – at a moment when counter-terrorism efforts are succeeding, the U.S. is withdrawing from Iraq, and about to begin a withdrawal from Afghanistan. And, they say, it gives Obama and any successor carte blanche to attack any individual or any nation without further approval from Congress.

“The U.S. is trying to finish up and pull out of two wars right now [but] Congress is involved in declaring, for the first time in 70 years, worldwide war,” said Chris Anders, a legislative liaison for the American Civil Liberties Union.

In addition, Anders said, the legislation would result in “a huge transfer of authority from the Congressional Branch to the Executive Branch” that would give “ authority to this president and all future presidents to use military power, war power wherever a terrorism suspect resides.”

Daphne Eviatar of Human Rights First argues that the Republican proposal is a particularly inappropriate response to this historical moment.

“We’ve now…killed Osama bin Laden. It doesn’t seem like the time to be expanding the war on terror,” she said. “A lot of people are thinking it’s time to pull back the use of the military. We’ve captured or killed the No. 1 guy we were looking for. To authorize troops anywhere or bombing anywhere, I don’t think is going to go over well with the American people.”

Many human rights advocates and civil liberties groups advocate an end to Predator drone strikes and indefinite detention – key tactics in the current U.S. anti-terrorism strategy . Fighting the remnants of Al Qaeda, they argue, is best accomplished through the use of law enforcement powers to arrest alleged terrorists and put them on trial in the U.S. or abroad.

But Thornberry said the killing of bin Laden by Navy SEALs and the aggressive use of tactics like drone strikes demonstrates the effectiveness of those techniques over what he says are the more traditional police approaches advocated by groups such as the ACLU.

“A law enforcement model would not have gotten bin Laden. A law enforcement model will not get Zawahiri and on down the line,” the congressman said.

A White Houses spokesman declined to comment to POLITICO about the administration’s official position on whether the AUMF needs to be reaffirmed or replaced.

However, a senior administration official said Obama aides are split over whether to endorse the idea of updating the use-of-force resolution.

“After ten years, you may need something other than the AUMF,” said the official, who spoke on condition of anonymity. “As an intellectual policy matter you can make a very good argument for doing that [but] there are divisions.”

The Pentagon’s top lawyer, Jeh Johnson, indicated earlier this year that the administration was satisfied with the 2001 AUMF. However, he suggested that it was possible the threat was changing in a way that would make Congressional action advisable.

“The conflict against Al Qaeda is evolving because that organization is evolving. It is more decentralized than it was 10 years ago,” Johnson said at a House hearing in March. “I think that the current legal interpretations of the AUMF that we have and that we’ve used, which are solid, are sufficient to address the existing threats that I have seen and that I have evaluated. So, I think that it’s worked so far.”

Later, Johnson said that a congressional affirmation of the right to detain forces “associated” with Al Qaeda or the Taliban “is something that we should seriously think about.”

Despite the White House’s public silence over whether the 2001 use-of-force resolution needs to be updated, officials have described an ongoing state of war with Al Qaeda even in the wake of last Monday’s raid.

“The war continues after the death of bin Laden,” White House Press Secretary Jay Carney said Monday.

It’s unclear for now how much resistance Democratic lawmakers will put up to the Republican proposal. Rep. Adam Smith (D-Wash.), the ranking member on the Armed Services panel, said through a spokesman that he’s “gathering concerns” about the AUMF –related language proposed by the GOP.

“Smith believes that the appropriate place for this discussion is on the House floor. This is an issue much larger than one committee. It involves war and peace, and we believe it is appropriate to allow the entire House to take part in this discussion,” Smith spokesman Mike Amato said.

Many in the administration are also skittish that any congressional debate on the AUMF or the war on terror more generally will quickly devolve into political one-upmanship, according to officials.

One source said senior Obama aides were deeply disturbed by a bill introduced by McKeon and other GOP members in March that included an update to the AUMF as well as language that would have forced military detention for many terrorism suspects the U.S. may capture in the future.

“That original draft was an atrocity,” said an administration official, who asserted that the language would cause Americans affiliated with Al Qaeda to be transferred to Guantanamo. “Various agencies were polled and everybody hates it.”

McKeon removed that language from the war-on-terror measures included in the chairman’s mark of the defense bill going before the committee on Wednesday.

But several experts on law-of-war issues said they believe the time has come for Congress to revisit the AUMF.

“I think it does need to be amended,” said Scott Silliman, a law professor at Duke. “We are seeing more and more disparate terror groups that may or may not be tied to 9/11, like Al Shabbab in Somalia….Now that bin Laden is dead, I suspect we’ll see even more splinter groups not in any way associated with Al Qaeda or 9/11.”

However, Silliman said he shared the administration’s concerns about a congressional debate on the AUMF leading to legislation that could actually reduce the president’s authority to choose different tactics for the fight. The defense bill carrying the AUMF language is open to unlimited amendments in the markup and likely will be the subject of dozens or hundreds of amendments on the floor as well.

“Let’s solve one problem without trying to cloud it with a bunch of stuff that can be dealt with elsewhere,” Silliman said.

The Obama administration’s early efforts to distance itself from Bush-era arguments may have given more ammunition to those who want to amend or re-enact the 2001 resolution.

Soon after Obama took office, the Justice Department abandoned arguments put forward by the Bush administration that it had authority to detain Guantanamo prisoners based on the president’s commander-in-chief power under the Constitution. By relying solely on the 2001 Congressional resolution, Obama’s legal team seemed to suggest that using the military to hold prisoners required a nod from Congress.

Silliman said he expects the administration would retreat from that position if it became urgent to hold someone not covered by the 2001 resolution. He noted that despite abandoning the Bush-era argument for executive power, the Obama White House never said that the Constitution “can never be a predicate for taking prisoners.”

Meanwhile, the debate over whether the fight against Al Qaeda should be considered a war or a law enforcement operation against international organized crime heated up Monday on the Senate floor. Obama’s nominee for deputy attorney general, James Cole, came under fire again from GOP senators over a 2002 op-ed piece in which he urged that the September 11 attacks be considered “criminal acts” rather than acts of war.

Cole, who received a recess appointment from Obama in December, fell ten votes short of the 60 needed to overcome a Republican filibuster.