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Sen. Angus King at Odds with Pentagon Over Governing Military
05/20/2013   Reported By: Tom Porter

Maine Sen. Angus King has found himself at odds with the Department of Defense over the law governing the use of military force. At a Senate hearing last Thursday on armed conflict and the law, Pentagon officials said the U.S. could be at war with Al Qaeda and its affiliates for another 20 years, and that no congressional approval would be needed. Such action, they said, would be justified by the Authorization for Use of Military Force, or AUMF, a resolution passed by Congress in the immediate aftermath of the 9/11 attacks. It was meant as a way of authorizing then-president Bush to take military action against the perpetrators. Sen. King, an Independent, said the Pentagon is trying re-write the Constitution.

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"They were essentially saying that this resolution passed in 2001 covered military action anywhere in the world, at any time, against any enemy," King said. "And I thought that was that, it renders the congressional war power an nullity."

King stressed that he's not against the U.S. being able to take military action when attacked.

"We should be able to respond to terrorism.  The question I have is: Does this statute, passed literally one week after September 11, it was passed September 18, 2001, provide a sufficient legal basis for this kind of unlimited response?" asked King.

"This is a battle that goes back a long way, if you think about separation of powers between the executive branch and the legislative branch," said King.

Dimitry Bam teaches constitutional law at the University of Maine school of law.

"It's not set out clearly in the constitution how the powers as to war are going to be delegated," Bam said. "Some are assigned to Congress. On the other hand the president is the commander-in-chief."

He said the U.S. has not gone to war with full congressional approval since entering World War II in 1941, so there's not a lot of case law at the Supreme Court to go on.

With the prospect of America being involved a number of conflicts throughout the globe in years to come, Professor Bam predicts an intensifying struggle between Congress and the executive branch on the issue of war powers.

Sen. King, meanwhile, said the pattern since World War II has been that the executive comes to Congress with evidence of an attack on U.S. interests, and receives a generalized authorization to take action.

An example of this, he said, is the Gulf of Tonkin Resolution of 1964, which set the stage for a huge expansion of America's involvement in Vietnam. King said he's not particularly proud of the fact that the U.S. has not gone to war with full congressional approval for more than 70 years.

"And it certainly isn't an argument that we ought to just throw up our hands and say wherever the president wants to strike he can do so without the authorization of Congress," King said.

He cited Article One Section Eight Clause Eleven of the Constitution, sometimes referred to as the War Powers clause, which gives Congress the right to declare war. He said the framers put it in because they reasoned that the legislative branch would be more reluctant to rush to war than the executive.

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