The American Bear

Sunshine/Lollipops

The president was right to call for repeal of the 2001 authorisation for use of military force, but he doesn’t need to wait for Congress to act on this. He can unequivocally reject the ‘global war’ legal theory today, once and for all, and put an end to the indefinite detention, military commissions and unlawful killings it has been used to justify. Obama drone oversight proposal prompts concern over ‘kill courts’

That the Obama administration is now repeatedly declaring that the ‘war on terror’ will last at least another decade (or two) is vastly more significant than all three of this week’s big media controversies (Benghazi, IRS, and AP/DOJ) combined. The military historian Andrew Bacevich has spent years warning that US policy planners have adopted an explicit doctrine of ‘endless war’. Obama officials, despite repeatedly boasting that they have delivered permanently crippling blows to al-Qaida, are now, as clearly as the English language permits, openly declaring this to be so. It is hard to resist the conclusion that this war has no purpose other than its own eternal perpetuation. This war is not a means to any end but rather is the end in itself. Not only is it the end itself, but it is also its own fuel: it is precisely this endless war - justified in the name of stopping the threat of terrorism - that is the single greatest cause of that threat. Washington gets explicit: its ‘war on terror’ is permanent | Glenn Greenwald

Pentagon Spec Ops Chief Sees '10 to 20' More Years of War Against al-Qaida | Spencer Ackerman

The war in Afghanistan may be winding down. But the Pentagon’s chief of irregular warfare still sees a war against al-Qaida that will last decades, all over the world — a prospect that prompted astonishment and constitutional debate in the Senate.

Asked at a Senate hearing today how long the war on terrorism will last, Michael Sheehan, the assistant secretary of defense for special operations and low-intensity conflict, answered, “At least 10 to 20 years.”

It was just two months ago that the top U.S. intelligence official testified that al-Qaida had been battered by the U.S. into a state of disarray. A year ago, the current CIA director, John Brennan, said that “For the first time since this fight began, we can look ahead and envision a world in which the al Qaeda core is simply no longer relevant.” Just this week, the commander of the Joint Special Operations Command, Army Lt. Gen. Joseph Votel, told a Florida conference that he was looking at missions beyond the counterterrorism manhunt.

Yet a spokeswoman, Army Col. Anne Edgecomb, clarified that Sheehan meant the conflict is likely to last 10 to 20 more years from today — atop the 12 years that the conflict has already lasted. Welcome to America’s Thirty Years War. [++]

A top Pentagon official said Thursday that the evolving war against ‘Al Qaeda’ was likely to continue 'at least 10 to 20 years' and urged Congress not to modify the statute that provides its legal basis. ‘As of right now, it suits us very well,’ Michael A. Sheehan, the assistant secretary of defense for special operations, said, referring to the ‘authorization to use military force,’ often referred to as the A.U.M.F., enacted by Congress in 2001.

Pentagon Official Urges Congress to Keep Statute Allowing War on Terror Intact

Shorter: “We’ve already perverted the original intent of the AUMF to allow us to kill anyone we want wherever we want for whatever reason we want, so why rock the boat?”

Barbara Lee and Dick Durbin's 'nobody-could-have-known' defense | Glenn Greenwald

Various senators are reportedly considering changes to the 2001 Authorization to Use Military Force (AUMF) in light of how far beyond its scope US military action is now routinely deployed. That may seem like a welcome development, but as Marcy Wheeler notes, the officials involved and the “experts” on whom they’re relying strongly suggest that any changes would entail expanding and broadening this authorization, not narrowing or rescinding it. One of the Senators who is pushing for changes is Democrat Dick Durbin, who said this:

None of us, not one who voted for it, could have envisioned we were voting for the longest war in American history or that we were about to give future presidents the authority to fight terrorism as far flung as Yemen and Somalia. I don’t think any of us envisioned that possibility.”

This is a common tactic in Washington political and media circles: whenever they do something destructive and wrong, they exonerate themselves with this “nobody-could-have-known” formulation: yes, we turned out to be horribly wrong, but nobody could have known at the time that this would happen. But almost always, not only could someone have known, and not only should someone have known, but someone - usually many people - did know. They just weren’t the kind of people that those making this claim believer are worth listening to.

Immediately after the 9/11 attack, Democratic Rep. Barbara Lee of California knew exactly that which Durbin now says nobody “could have envisioned”. She not only knew it, but she stood up on the floor of the Congress a mere three days after the 9/11 attack in order to cast the lone vote against the AUMF, citing precisely the dangers that Durbin claims nobody “could have envisioned”:

“[W]e must be careful not to embark on an open-ended war with neither an exit strategy nor a focused target. We cannot repeat past mistakes.

“In 1964, Congress gave President Lyndon Johnson the power to ‘take all necessary measures’ to repel attacks and prevent further aggression. In so doing, this House abandoned its own constitutional responsibilities and launched our country into years of undeclared war in Vietnam.

“At this time, Senator Wayne Morse, one of the two lonely votes against the Tonkin Gulf Resolution, declared, ‘I believe that history will record that we have made a grave mistake in subverting and circumventing the Constitution of the United States. I believe that with the next century, future generations will look with dismay and great disappointment upon a Congress which is now about to make such a historic mistake.’

“Senator Morse was correct, and I fear we make the same mistake today.”

… In a September 23, 2001 interview with the LA Times, as controversy continued over her 434-1 lone vote, she elaborated on the rationale for her opposition even as she made clear that she did not oppose the use of any and all military force as a response to the 9/11 attack:

“I’m opposed to granting that broad power to any president. I believe Congress has got to be part of the decision-making process when we’re talking about going to war against sovereign nations. This resolution, even though it was focused on the World Trade Center attack, is open-ended. It doesn’t have an exit strategy; it does not have any reporting requirements. And the president already has authority to use force [internationally for 60 days without congressional approval] under the War Powers Act. So what was this about?

“I agonized over this vote. We’re all mourning. We’re angry and frustrated. I felt that [someone] in this environment of grief needed to say let’s show some restraint in our response. Let’s not do anything that could escalate this madness out of control. Let’s know the implications of our actions, and let’s make sure that our system of checks and balances is maintained. We need to figure out a way to stamp out international terrorism and bring these perpetrators to justice without creating more loss of life… . We need to know where we’re going and who we’re going after.”

In an Op-Ed she wrote for her hometown Oakland Post on September 26, she further explained her vote this way, again presciently warning of exactly the dangers that Durbin now claims nobody could have foreseen:

“Some believe this resolution was only symbolic, designed to show national resolve. But I could not ignore that it provided explicit authority, under the War Powers Resolution and the Constitution, to go to war. It was a blank check to the president to attack anyone involved in the Sept. 11 events - anywhere, in any country, without regard to our nation’s long-term foreign policy, economic and national security interests, and without time limit.

“In granting these overly broad powers, the Congress failed its responsibility to understand the dimensions of its declaration. I could not support such a grant of war-making authority to the president; I believe it would put more innocent lives at risk.”

… To say that Lee was vilified for her warnings is a serious understatement. She was deluged with so many death threats that she was given around-the-clock police protection.

… Barbara Lee’s lone vote against the 2001 AUMF - three days after the 9/11 attack - was an act of incredible and rare courage that is worth commemorating in its own right. But it was also prescient and wise, using America’s past bad acts to warn of the dangers likely to be unleashed by enacting it. If Dick Durbin wants to acknowledge his gross error in voting in favor of such a blank check for presidential war-making - one that led to 12 years of war in numerous nations with no end in sight - he should do so honestly. Instead of pretending that nobody could possibly have known this would happen as a deceitful means of excusing his bad acts, he should instead acknowledge that there were people who did know and tried to warn the nation about it, but those weren’t the types of voices to which he paid any attention because they weren’t emanating from the Pentagon, the Brookings Institution and the columns of Tom Friedman. That is the mistake he should acknowledge and learn to rectify.

The Folks Who Brought You Military Detention in the NDAA Are Rewriting the AUMF | emptywheel

Yesterday, the Senate Armed Services Committee announced a hearing to revisit the 2001 Authorization to Use Military Force. In addition to a bunch of DOD figures (but not the recently departed Jeh Johnson, the DOD-connected person who said the most interesting things about the AUMF), it’ll have (I’ve linked their most salient comments on the AUMF):

Rosa Brooks, Professor of Law, Georgetown University Law Center

Geoffrey Corn, Professor of Law, South Texas College of Law

Jack Goldsmith, Professor of Law, Harvard Law School

Kenneth Roth, Executive Director, Human Rights Watch

Charles Stimson, Manager, National Security Law Program, The Heritage Foundation

Curiously, John Bellinger who (as far as I understand) started the discussion of a new AUMF is not slated to testify. Also note that the Deputy Director of Special Operations for Counterterrorism will testify, but no one from CIA is scheduled to; while JSOC can operate under the President’s inherent authority, it likely prefers the legal cover of an AUMF (and therefore may be one of the entities pushing for an AUMF that matches reality on the ground).

Politico reports that this hearing is more than speculative: Levin and no-longer-SASC-Ranking-Member-but-he-might-as-well-be John McCain are planning to rewrite the AUMF, with help from Bob Corker, Dick Durbin, and Lindsey “all detainees must be military” Graham.

And if the inclusion of Graham in that group doesn’t scare you, remember that this crowd is substantively the same one that enshrined military detention in 2012’s NDAA. While that effort might be regarded as “reasonable” Carl Levin and John McCain’s attempt to present something more reasonable than House Armed Services Committee Buck McKeon was pushing for, and while the NDAA originally included exceptions for US citizens, in the event, the White House pushed Carl Levin to effectively rubber stamp its claims to unlimited authority, including detaining (or killing) US citizens.

[…]

Ultimately, though, what is likely to happen with this debate is that all players will be unwilling to discuss openly what we’ve actually been doing in the name of war against al Qaeda, up to and including waging war in the “homeland.” That’s one thing the 2001 AUMF was written to exclude. And I can almost guarantee you, it’s an authority the President will want to preserve.

A big part of the problem is that the authorization to use military force is too vague. It gives the president the power to attack ‘nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.’ Making the law more specific, however, would only further enshrine the notion of a war without end. And, as Jeh Johnson, then counsel to the defense secretary, said in a speech last November, ‘War must be regarded as a finite, extraordinary and unnatural state of affairs.’ The right solution is for Congress to repeal the 2001 authorization. It could wait to do that until American soldiers have left Afghanistan, which is scheduled, too slowly, for the end of 2014. Better yet, Congress could repeal it now, effective upon withdrawal.

Repeal the Authorization for Use of Military Force Law | NYTimes

A tepid yet welcome call from the NYT.

The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops. Officials said they have not ruled out seeking an updated authorization from Congress or relying on the president’s constitutional powers to protect the country. But they said those are unappealing alternatives. … The AUMF, as the 2001 measure is known, has been so central to U.S. efforts that counterterrorism officials said deliberations over whom to put on the list for drone strikes routinely start with the question of whether a proposed target is ‘AUMF-able.’

Administration debates stretching 9/11 law to go after new al-Qaeda offshoots | The Washington Post

Also.

The AUMF Fallacy | Marcy Wheeler

[…] The CIA, the agency that killed Awlaki, looks to Article II authority before it engages in targeted killing. Congressional authorization might also provide authority, [CIA General Counsel Stephen] Preston says. But Preston makes it clear that all the CIA needs to conduct lethal covert operations (though he does not specify that this holds with an American citizen) is the President’s Article II say-so.

At best, this record shows that Obama has operated under Article II and AUMF yoked together. There is no conceivable way (except by deliberate misreading) to argue that he is operating exclusively under the AUMF, because these public statements point to both the AUMF and Article II. And the Preston language at least envisions conducting such operations solely under Article II.

Finally, this notion that the President doesn’t think he could shoot drones against the Colombian drug lords or the LRA? It would be a lot more defensible statement if the Administration would share with even the Intelligence Committees — which it has thus far refused to do — the list of all the countries it has operated with lethal force. Add in those 7 OLC memos authorizing targeting killing (though not of Americans) that the Administration also has thus far refused to share, and there’s good reason to believe the Administration is conducting targeted killings — whether by drones or other means — in ways that must stretch the AUMF, because they won’t share that information with the Congress that purportedly authorized it.

These arguments that Obama ordering the death of an American (purportedly under exclusively AUMF authority) isn’t that bad are all very nice. But insofar as they ignore the public record, which shows that Obama is at least partially situating his authority to kill in his Article II authority, the arguments are simply spin on what Obama really did. [read]

Judge Colleen McMahon: The Covert Op that Killed Anwar al-Awlaki Was Illegal | emptywheel

A lot of people have discussed this section of Judge Colleen McMahon’s January 2, 2013 ruling dismissing ACLU and NYT’s FOIA for memos and other documents related to the targeted killing of Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret. [ew emphasis]

But I’m not aware of anyone commenting at length on the section she titles, “Constitutional and Statutory Concerns about Targeted Killings,” a 5-page discussion of assessing targeted killing in terms of due process, treason, and other laws.

While the section is not entirely off point — she explores some of the legal questions raised in ACLU’s FOIA, though as I’ll show, she expands on the questions ACLU raised — the section is completely extraneous to her task at hand, determining whether or not the government has to turn over its legal justifications for killing Anwar al-Awlaki, Samir Khan, and Abdulrahman al-Awlaki. In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

She recalls how central due process was to the founding of our nation.

As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….

The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.

She reminds that the Treason Clause appears in Article III of the Constitution, not Article II.

Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

Thus far, she has just made it abundantly clear she meant her earlier comment about “actions that seem on their face incompatible with our Constitution and laws” seriously (and she addresses points — due process and Treason — the ACLU brought up explicitly). She interrupts her work of assessing the FOIA case before her to make it very clear she believes the Awlaki killing violated key principles of our Constitution. [do continue]

As long as the War on Terrorism is being fought with its current policies in tact [i.e. as long as the 2001 AUMF remains as the backbone of post-legal America], Americans can count on presidents who differ little from their predecessor on civil liberties. They will never defend due process, free speech, press freedom, privacy or rights to liberty and justice and risk constraining the ability of government to fight enemies abroad. Each president will be the same or worse than the previous president. Kevin Gosztola

The Root of the Problem Remains

"The recently leaked Justice Department memo that outlined the overly broad and vague legal boundaries used to justify drone strikes should shake the American people to the core.

"While I applaud President Obama for releasing more information to the Senate and House intelligence committees, the root of the problem remains: The administration is using the Authorization for the Use of Military Force passed by the House on Sept. 14, 2001, as one of the justifications for the lethal use of drones. As the only member of Congress who voted against this blank check, I believe now more than ever that we must repeal it.

"We need a full debate of the consequences of the September 2001 action, and meaningful oversight by Congress is vital. As commander in chief, it is Obama’s duty to keep our country safe, but Congress must not retreat from its constitutional obligation of oversight. These checks and balances are the foundation of our democracy, and they must stay intact."

Rep. Barbara Lee (D-Oakland)

Drone Strike Limitations Considered By Congress After Justice Department Memo Surfaces | HuffPost

[…] “It has to be in the agenda of this Congress to reconsider the scope of action of drones and use of deadly force by the United States around the world because the original authorization of use of force, I think, is being strained to its limits,” Sen. Chris Coons, D-Del., said in a recent interview.

Rep. Steny Hoyer of Maryland, the No. 2 Democrat in the House, said Tuesday that “it deserves a serious look at how we make the decisions in government to take out, kill, eliminate, whatever word you want to use, not just American citizens but other citizens as well.”

Hoyer added: “We ought to carefully review our policies as a country.”

This is a good sign, but keep in mind that the suddenly shocking “white paper” has been floating around congress since June (and the fact that the Obama administration has been running an oversight-free executive branch death squad from the White House isn’t exactly new information, or shouldn’t be to anyone paying attention).