SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 4
January 9, 2006

CRS ON AUTHORIZATION FOR USE OF MILITARY FORCE

The legislative history of the September 14, 2001 Congressional resolution authorizing the use of force in response to the September 11 attacks is concisely examined in a new report of the Congressional Research Service.

The 2001 Authorization for Use of Military Force, or AUMF, has been in the news lately because the Bush Administration has claimed that it provided statutory authority for the National Security Agency to conduct warrantless surveillance within the United States, a claim that has been disputed by some in Congress and elsewhere.

The new CRS legislative history notes that the White House had initially sought legislative authority "to deter and pre-empt any future acts of terrorism or aggression against the United States."

But "This language would have seemingly authorized the President, without durational limitation, and at his sole discretion, to take military action against any nation, terrorist group or individuals in the world without having to seek further authority from the Congress."

"It would have granted the President open-ended authority to act against all terrorism and terrorists or potential aggressors against the United States anywhere, not just the authority to act against the terrorists involved in the September 11, 2001 attacks, and those nations, organizations and persons who had aided or harbored the terrorists.

"As a consequence, this portion of the language in the proposed White House draft resolution was strongly opposed by key legislators in Congress and was not included in the final version of the legislation that was passed," the CRS explained.

A copy of the new CRS publication was obtained by Secrecy News.

See "Authorization For Use Of Military Force in Response to the 9/11 Attacks (P.L. 107-40): Legislative History," January 4, 2006:

CRS ON DECLARATIONS OF WAR AND AUMFS

The distinction between a formal declaration of war and an authorization for use of military force was addressed in an exceptionally informative report of the Congressional Research Service in 2003.

"With respect to domestic law, a declaration of war automatically brings into effect numerous standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc."

"In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force."

The history of both categories is delineated, including the texts of the eleven formal declarations of war and the most important authorizations for use of military force, along with an itemization of the various statutes that are triggered directly or indirectly in each case.

The 112 page CRS report is not generally available in the public domain. A copy was obtained by Secrecy News.

See "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications," updated January 14, 2003:

MORTON HALPERIN ON WARRANTLESS NSA SURVEILLANCE

"The warrantless National Security Agency (NSA) surveillance program is an illegal and unnecessary intrusion into the privacy of all Americans," writes Morton H. Halperin in a new assessment of the controversial program.

Halperin, a leading civil libertarian and former Pentagon and State Department official, played an influential role in the enactment of the Foreign Intelligence Surveillance Act (FISA) of 1978, which subjected intelligence surveillance within the United States to a measure of judicial oversight. He also has the distinction of having his phone tapped at the direction of Henry Kissinger, who eventually apologized for the action.

"Congress must conduct hearings to determine exactly what is being done in the new NSA program and why the administration concluded that it could not use FISA," he urged.

"Then it should determine what needs to be done to insure that, in the future, Presidents obey the law."

See "A Legal Analysis of the NSA Warrantless Surveillance Program" by Morton H. Halperin, January 6, 2006:

STEPHEN CAMBONE ON DOD FACILITY SECURITY

Under Secretary of Defense for Intelligence Stephen A. Cambone has issued a new Department of Defense Instruction on the subject of DoD facility security.

"The authority of a DoD commander to take reasonably necessary and lawful measures to maintain law and order and to protect installation personnel and property ... shall not be exercised in an arbitrary, unpredictable or discriminatory manner."

See DoD Instruction 5200.08, "Security of DoD Installations and Resources," December 10, 2005:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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