

Osama bin Laden is dead. 9/11 was ten years ago. So it's not the most obvious time for a key congressional panel to expand the war on terrorism.

But that's exactly what a section of the fiscal 2012 defense bill proposes to do. The so-called "Chairman's Mark" of the bill, currently before the House Armed Services Committee, wants to update the 2001 Authorization to Use Military Force, to reflect that the al-Qaida of the present day is way different than the organization that attacked the U.S. on 9/11.

While the original Authorization tethered the war to those directly or indirectly responsible for 9/11, the new language authorizes "an armed conflict with al-Qaida, the Taliban, and associated forces," as "those entities continue to pose a threat to the United States and its citizens."

To its supporters, the proposal catches Congress up to the reality of today's war. There aren't many al-Qaida members in Afghanistan, but the war there rages onward. Meanwhile, the Obama administration wages a series of secret wars against al-Qaida entities in Pakistan and Yemen. Since last fall, Rep. Buck McKeon, the chairman of the committee, has argued that Congress, which hasn't voted on the war in a decade, needs to go on record approving or disapproving of the 2011-era war. Essentially, his proposal would bring the secret wars in from the cold.

But some counterterrorism analysts are worried that there's no way to win a war this broad – only a way to expand it.

"Associated forces" could place the U.S. at war with terrorist entities that don't concern themselves with attacking the United States. Think Lashkar-e-Taiba, the Pakistani terrorist group aligned with al-Qaida that pulled off the Mumbai bombings of 2008. Under the House language, there's nothing to stop Obama or his successors from waging war against them. It comes close to "terrorism creep," says Karen Greenberg, the executive director of the Center for Law and Security at New York University.

Greenberg doesn't dispute that the war on al-Qaida goes far beyond bin Laden. But before voting on an expansion of the war – beyond al-Qaida – "we need to absorb first what the death of bin Laden means," she says. "We need to stop and think and re-think. The idea that we're going to keep reacting and not have a thoughtful time out is just unacceptable."

The proposal is a big expansion of executive authority, giving the president the ability to "use all necessary and appropriate force" against those terrorist groups he decides are U.S. enemies. So it's an additional irony that the Obama administration isn't wild about it.

Jeh Johnson, the Pentagon's top lawyer, argued before the committee in March that the 2001 authorization is "sufficient to address the existing threats that I've seen." Johnson's resistance to a renewed authorization disappointed the panel's leadership. Rep. Mac Thornberry, a Texas Republican who chairs a panel subcommittee, argued that a deficit of congressional approval for actions like drone strikes in Pakistan makes it "incredibly difficult for you to authorize the actions most of us agree we need to take."

But the administration's stated antipathy to the new authorization makes sense when considering a major chunk of the proposal would keep Guantanamo Bay open practically forever. It reestablishes military assessments on the continued danger from detainees at Gitmo, outside of the military commissions that try suspected war criminals. It restricts the resettlement of detainees into the U.S., even if that panel says they pose no threat, and makes it harder to transfer detainees to foreign countries. And it prevents the administration from building or upgrading any domestic detention facility to house Guantanamo detainees – a provision Obama bridled at in last year's bill, but ultimately signed into law.

It's an open question whether Obama will fight the committee on the new authorization provisions. It doesn't want a second grueling fight over the defense bill this year – which gives McKeon an advantage. Josh Gerstein reports at Politico that the Obama team hasn't made up its mind whether to embrace or oppose the proposal. Chances are, some aides would simply prefer to avoid a congressional debate that's sure to split its liberal base.

And that indecision stretches to other areas of the war as well. Obama said last Sunday that the war won't end because bin Laden's dead. But aides like John Brennan optimistically forecast that bin Laden's death and the reformist Mideast revolts are the beginning of the end for the terrorist group. In between, the administration is ratcheting up its drone war and withdrawing only about a third of the surge forces from Afghanistan. And now Congress would essentially give Obama a big encouragement to escalate the war instead of spooling it back.

"At a time when most Americans want the country to start pulling out of Iraq and Afghanistan and limiting use of the military, the new declaration of war would give the president unchecked authority to use the military practically anywhere and everywhere," says Chris Anders, a top lobbyist with the ACLU (which, full disclosure, employs my fiancee). "Congress should certainly exercise far more care and caution when turning over so much war authority to the president."

Photo: U.S. Army

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