Senators Have a New Plan to Expand Indefinite Detention and Endless Global War
Just when you thought things couldn’t get any worse with this Congress, a bipartisan pair of senators have teamed up to write the single most dangerous piece of unconstitutional legislation of this Congress.
Last week, Sens. Bob Corker (R-Tenn.) and Tim Kaine (D-Va.) introduced S. Res. 59, which is a new Authorization for Use of Military Force (AUMF). An AUMF is roughly the modern equivalent of a declaration of war, and the Corker-Kaine AUMF gives President Trump and lots of future presidents the authority to take the country to war against an endless list of groups and individuals in an endless list of countries.
The result will be true global war without end.
The two senators wanted to get a quick vote in the Senate Foreign Relations Committee last week and have the bill rocket through the Senate and House and onto the president’s desk. Fortunately for all of us, senators from both parties, from Sen. Mike Lee (R-Utah) to Sen. Jeff Merkely (D-Ore.), forced a slowdown. But Corker and Kaine are working overtime to try to jam through their AUMF, which is a dumpster fire of bad ideas.
Here are just some of the harms packed into their proposed AUMF:
It immediately authorizes war against eight groups. With literally no strategic or operational restrictions, the Corker-Kaine AUMF authorizes immediate war against eight groups in six countries. The American military could be sent into battle in countries such as Libya, Somalia, or Yemen to fight groups that most Americans have never even heard of. This could lead to the immediate deployment of tens of thousands, or even hundreds of thousands, of American military service members to fight if Congress passes and Trump signs this AUMF.
The U.S. could declare war on a person. The president — not just President Trump, but likely every president for the next generation or longer — will be able to add new groups or new countries to the AUMF by simply sending a one-paragraph note to Congress. Absurdly, the Corker-Kaine AUMF even gives the commander-in-chief the option of going to war against a “person.” The president would not even have to explain why the new group or person is an enemy or what kind of danger awaits from military action in a newly added country.
Congress abdicates its war-making powers. In a stunningly unconstitutional move, the Corker-Kaine AUMF takes the most important power that the Constitution gives to Congress alone — the power to declare war — and turns it almost entirely over to this president and every future president. The only way that Congress would be able to stop a determined president from going to war everywhere and against anyone the commander-in-chief chooses would be to get a two-thirds majority of both houses of Congress to override the president's veto.
This flips the constitutional order on its head since the Constitution says a majority of both houses must agree to go to war before military action is taken. By contrast, the Corker-Kaine AUMF requires two-thirds of both houses to try to stop a president from using the war power that the AUMF would give the president. This provision to swap the Constitution’s requirement of a majority in both houses to declare war for a two-thirds majority of both houses to stop war breaches checks and balances and the separation of powers. It can’t possibly be constitutional.
So, what more could be added to a piece of legislation that unconstitutionally sets us up for war everywhere and forever?
How about amping up the authority for any president to use the military to lock people up with no charge or trial? And expanding this authority with no boundaries — and with no statutory prohibition in the AUMF against locking up American citizens or anyone picked up even in the United States itself? We believe it would still be unlawful for a president to try it (again), but why risk it?
Congress went down this same road in 2011, with the National Defense Authorization Act (NDAA) and hundreds of thousands of activists from the ACLU and our allies called and emailed their members of Congress urging its defeat. It narrowly passed, and President Obama signed it — with a promise not to use it against American citizens, but without denying that a president could have the power to order military detention.
The Intercept has an explanation of how this new detention provision could work. It is truly hard to believe that anyone in Congress would believe that it is a good idea for the legislature to head down this road again. Please sign our petition urging your senators to do everything they can do to make sure the Corker-Kaine AUMF never becomes law.
The Corker-Kaine AUMF is beyond dangerous. It is unconstitutional. And it is set up to never end. The Senate has a duty to kill this legislation immediately and show all members of Congress and the executive that abdicating Congress’s duty to declare war stays with the people’s representatives and no one else.
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Press ReleaseDec 2024
Free Speech
National Security
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Press ReleaseDec 2024
National Security
Religious Liberty
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
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ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.