Section 1034 of HR 1540 – The 2012 NDAA Chairman’s Mark: Perpetual War Authorization, AnyWhere, Any Time Against Any Enemy Perceived or Real

by Scott Creighton

UPDATE: It would appear that this clause was inserted after the staged “killing” of Osama bin Laden in an effort to ensure the Global War on Terror continued after his alleged demise. (see end of article)

According to the American Civil Liberties Union (ACLU), there is a clause hidden deep within the National Defense Authorization Act, Section 1034 of the Chairman’s Mark aka House Resolution 1540 (pdf), which will give the president unprecedented power to engage the United States in wars anywhere in the world at any time. It appears to be an open-ended declaration of war against “terrorists” whomever they may be so deemed at the time and where ever they may be at the time. And the ACLU seems convinced that the scope of the declaration would also include targets within the continental United States.

“To be clear, President Obama has not sought enactment of the proposed new Declaration of War. To the contrary, his Administration has made clear its position that it believes it already has all of the authority that it needs to fight terrorism. But if the proposed new Declaration of War becomes law, President Obama and all of his successors, until and unless a future Congress and future President repeal it, will have the sweeping new power to make war almost anywhere and everywhere.ACLU

Perpetual war, not defined by location or nation, generally world wide, against al Qaeda or any “affiliated group or individual”, not limited to actions taken against the United States but rather suspected intentions that have yet to take place, and with no prior congressional authorization required.

The ACLU is right to be deeply concerned about this clause. There are some out there who are wondering as to the legitimacy of this issue as it is making it’s way through the early stages of the dissident sites. The Intel Hub is covering this as is Above Top Secret and AJ’s various sites. Several readers are wondering about the legitimacy of the claims made on these various sites. Let’s see if we can clear up some of that.

Here is a partial copy of the 2012 National Defense Authorization Act Chairman’s Mark on Scribd which does include section 1034 titled “Affirmation of Armed Conflict with Al Qaeda, the Taliban, and Associated Forces” which can be found if you scroll down to page 18.

click on image for larger view

Here is the full text of this section:

“Section 1034—Affirmation of Armed Conflict with Al-Qaeda, the Taliban, and Associated Forces

This section would affirm that the United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force(Public Law 107-40; 50 U.S.C. 1541 note). This section would also affirm that the President’s authority pursuant to the Authorization for Use of Military Force includes the authority to detain certain belligerents until the termination of hostilities.

The committee notes that as the United States nears the tenth anniversary of the attacks on September 11, 2001, the terrorist threat has evolved as a result of intense military and diplomatic pressure from the United States and its coalition partners. However, Al Qaeda, the Taliban, and associated forces still pose a grave threat to U.S. national security. The Authorization for Use of Military Force necessarily includes the authority to address the continuing and evolving threat posed by these groups.

The committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13th 2009, interpretation remains consistent with the scope of the authorities provided by Congress” Section 1034

The ACLU wrote a comparison between this authorization clause and the one established in 2001 after Sept. 11th, 2001. It is also important to note that congress has not specifically issued a declaration of war since WWII. Here is the text of what they claim is actually being authorized by this clause:

Congress affirms that—
(1) the United States is engaged in an armed conflict with al‐Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al‐Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al‐Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

When they put these authorizations up beside what was actually authorized in 2001 after the event of Sept. 11th 2001, it is a striking comparison. Back then they only authorized going after those who were directly involved in attacking this country or those who harbored them and it specifically stated that it did not supersede any of the established requirements of the war powers resolution.

The potential ramifications of this clause, if the ACLU is correct, are remarkable to say the least.

The ACLU has put together a coalition memo dated May 9th 2011, denouncing this clause in no uncertain terms. It is signed so far by the following organizations:

American Civil Liberties Union
Appeal for Justice
Brave New Foundation
Center for Constitutional Rights
CREDO Action
Defending Dissent Foundation
High Road for Human Rights
Human Rights First
International Justice Network
Just Foreign Policy
Leadership Conference of Women Religious
Muslim Public Affairs Council
New Security Action
Pax Christi USA
Peace Action
Physicians for Human Rights
Psychologists for Social Responsibility
Shalom Center
Unitarian Universalist Association of Congregations
United Methodist Church, General Board of Church and Society
Win Without War

At this point there is sufficient evidence to conclude that this issue is indeed very real and should be considered of grave importance to every US citizen.

On May 11th 2011, House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) and 32 House Democrats issued a letter strongly rejecting the language of Section 1034 which read in part:

“By declaring a global war against nameless individuals, organizations and nations ‘associated’ with the Taliban and al Qaeda, as well as those playing a supporting role in their efforts, the Detainee Security Act would appear to grant the president near unfettered authority to initiate military action around the world without further congressional approval,” Democrats wrote. “Such authority must not be ceded to the president without careful deliberation from Congress.”

signed by:

Reps. John Conyers Jr. (D-Mich.), Steve Cohen (D-Tenn.), Peter DeFazio (D-Ore.), John Dingell (D-Mich.), Keith Ellison (D-Minn.), Bob Filner (D-Calif.), Raul Grijalva (D-Ariz.), Alcee Hastings (D-Fla.), Maurice Hinchey (D-NY), Michael Honda (D-Calif.), Jesse Jackson (D-Ill.), Sheila Jackson Lee (D-Texas), Dennis Kucinich (D-Ohio), Barbara Lee (D-Calif.), John Lewis (D-Ga.), Jim McDermott (D-Wash.), James McGovern (D-Mass.), George Miller (D-Calif.), Jim Moran (D-Va.), Jerrold Nadler (D-N.Y.), Eleanor Holmes Norton (D-D.C.), Donald Payne (D-N.J.), David Price (D-N.C.), Bobby Rush (D-Ill.), Jan Schakowsky (D-Ill.), Bobby Scott (D-Va.), Jackie Speier (D-Calif.), Fortney “Pete” Stark (D-Calif.), Bennie Thompson (D-Miss.), Maxine Waters (D-Calif.), Henry Waxman (D-Calif.), Lynn Woolsey (D-Calif.) and David Wu (D-Ore.). The Hill

Keeping in mind of course that I am not a lawyer, and that this is the Chairman’s Mark (which I take to mean the chairman’s mark-up of the bill, House Armed Services Committee Chairman Buck McKeon (R-Calif.)) the ACLU, the above listed organizations, and at least 33 members of the United States House of Representatives obviously consider this to be a very real threat to our civil liberties and the intent of the constitution itself, so it is certainly something to be deeply concerned about.

UPDATE: excerpt taken from Politico’s May 10th 2011 article:

“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.” Politico

14 Responses

  1. […] Section 1034 of HR 1540 – The 2012 NDAA Chairman’s Mark: Perpetual War Authorization, AnyWhere, Any Time Against Any Enemy Perceived or Real (via American Everyman) Filed under: Domestic Issues by The Destructionist — Leave a comment May 16, 2011 by Scott Creighton UPDATE: It would appear that this clause was inserted after the staged "killing" of Osama bin Laden in an effort to ensure the Global War on Terror continued after his alleged demise. (see end of article) According to the American Civil Liberties Union (ACLU), there is a clause hidden deep within the National Defense Authorization Act, Section 1034 of the Chairman’s Mark aka House Resolution 1540 (pdf), which will give the pres … Read More […]

  2. Good to read you again. I have missed your posts..Blessings

  3. No war declared since WWII. Well, darn, why is congress constantly putting war effort cost in our budget…..
    why are we invading and waging war on at least six other nations….. aren’t bombs and guns weapons of war? Doesn’t our government say that those, who airplaned our towers, did an act of war against us? Are we saying that our bombs (blasting another country) is not as bad as ‘airplanning targeting’? How come our actions are not held accountable? OH…. we have permission from NATO to wage war? fiddlesticks
    Obama is right , he already has the power to wage war …and he does it, without consent of congress…

    and this piece of shit law is just designed to ‘forgive’ him and other former presidents for war crimes……… and to reach out to those who oppose the facists who now control our government….

  4. Hi Sharon. Welcome back. missed ya

  5. unfortunately I think it’s worse than that, Jan. Remember, this is the “CHANGE” president who has done nothing to prosecute or even investigate war crimes and the deliberate destruction of the economy, but he has prosecuted more whistle blowers than any president in history. They have also rounded up and harassed peace activists on a routine basis and this clause in the Defense Authorization Act expands their powers to arrest and detain “enemy belligerents” right here at home for doing nothing more than say writing blogs that question what we are doing in Libya or say the Hillary Clinton version of what happened to the Cheonan.

    Aside from that, if that isn’t bad enough, this authorizes use of whatever military means the president decides to use against unnamed organizations, persons, in places that are yet to be determined to be any problem what so ever. That force could be anything from drones as we see used now, to full scale ground invasions, to pre-emptive nuclear strikes.

    this is about protecting decisions already made but it is also about decisions that have yet to be made in countries that pose no threat to us what so ever.

  6. good to keep in mind that the sociopathic usurper in the white house was hired by the inbreds, who own the UN, for one purpose: to implement, via his unctuous ‘charm’, global governance by the UN. it is necessary then to replace the us constitution with the un charter. he is illegally the head of the un security council. he gets to pick the next slaughter.

    it is ironic and symbolic that the inbreds chose for this position, a foreigner, an illegal alien or someone who is at least perceived as an illegal alien. one world, one race, one religion etc etc.

    whenever the usurper mentions nato, the un, global governance (eg “we must accept global governance and global currency”), human rights council, or anything else related to the un, it is time to be afraid. or at least functionally pissed off.

    the un as the one standing army, global governance, the one religion, the only power who can have nuclear weapons, and the organization to implement population reduction in many ingenious ways, is the heart of the inbreds’ plan.

    please understand that the usurper’s turning arizona over to the un human rights council, turning ALL of our shorelines over to the un, illegally heading the war-making arm of the un (security council) are no small events. these are the most significant acts of treason ever, even overshadowing the re-authorization of the patriot act.

    yet i have heard very little mention of these events. this soulless creature is handing the usa over to the un. that is the plan. that is how global governance will be implemented. the un has stated that representative government is a barrier to the implementation of the un charter.

    this is effing treason beyond treason. the un, mainly through agenda 21 sustainable development, is ubiquitous all around the world. i do not know if there are any environmental groups or ‘green’ groups of any kind that are not un ngos.

    the aclu, in addition to being a member of the cfr, is a un ngo. they did not go after bush or cheny. they will not go after obama. they will not accomplish anything ‘big’. they cannot. they are controlled opposition. global governance is their raison d’etre.

    almost every single ‘truth’ group is controlled opposition. here is a partial list of un ngos.

    we must do everything possible to keep from empowering the un. there have been calls lately to give the un and nato more power so that they can deal with the slaughter and invasions happening around the world. the un is behind the slaughter and invasions happening around the world.

    again and again and again –

    the us must be bankrupted and turned into a third world country.

    we are much more easily controlled when there are fewer of us. we must be kept sick, afraid, distracted.

    at all costs we must disempower the united nations. it IS the vehicle for tyranny planetwide.
    please explore this thoroughly. it is important to have a central target. this is it. this is the plan.

  7. How in the world would we disempower the UN, we can’t even get a fair and honest vote in this country any longer. We don’t control our own army (we are the employers)….. protests do nothing.

  8. Trident missile engineer Bob because the Pentagon aims to achieve a disarming first strike capability and wrote First Strike! The Pentagon´s Strategy For Nuclear War and Nuclear Empire (ch. 9 on anti-submarine warfare). Bob Aldridge wrote on the missiles to be deployed on ships in the Black Sea in Bulgaria and in Romania and Poland by 2015: “Whether they are on ships or land, they are still a necessary component for an unanswerable first strike.” Minuteman-3 and Trident-2 can hit within 30 meters of the target and that´s enough to destroy a missile silo. According to Professor Paul Rogers the warheads on Minuteman-3 and Trident-2 are designed to minimize nuclear winter effects when used against missile silos. This leads to Launch On Warning and Nuclear War may happen by mistake/accident because the Pentagon aims to achieve an unanswerable first strike capability.

  9. On another front, the War on Drugs, heard it this AM that all but one of the wags in the Supreme Court say no-warrant, pre-dawn kick-downs and entry by police is OK.

    Could be that it’s needed to help populate all the new prisons going up under the ‘job creation’ scene, and to maybe employ those caught up in the War on Poverty–those who aren’t doing time, anyway.

    Anyway, be warned, and warn those close to you–no pre-dawn flushing of the toilet unless you know who’s outside your door, listening in.

    r ap

  10. I didn’t read that this went through the senate. Can anyone tell me if it has?

    Do we have time to call Senator Reid and our own Senators to tell them to vote no?

  11. Superb analysis. Thanks for posting.

    Very scary, ominous. Feeling very powerless.

  12. You said that the text that is in question is “what they claim is actually being authorized by this clause.” Well its not that at all. It is the actual text from the law itself. If you need proof, go to pages 440 and 441: Also I found the text of the bill, most recent on THOMAS, the congressional server: Just wanted to clear that up.

  13. […] 1034 that was specially put into the new section after the killing of Osama Bin Laden. More explained here , as this gives loopholes that give the president the right to start wars all over the world […]

  14. And this little bit of tyranny could not have happened without those good, CONSERVATIVE Republicans…

    283 Ayes: (Democrat: 93; Republican: 190)…136 Nays: (Democrat: 93; Republican: 43)…Abstained: 14 (Democrat: 6; Republican: 8).

    In the Senate, Ayes: 93 (Democrat: 48; Republican: 44; Other: 1)
    Nays: 7 (Democrat: 3; Republican: 3; Other: 1)…

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