Tag Archive: AUMF

Jul 24 2018

Stopping Presidential Wars

One of my favorite constitutional lawyers is Bruce Fein. Although he is considered a conservative and was one of the authors of the articles of impeachment against President Bill Clinton, Fein advocated for the dual impeachment of Pres. George W. Bush and his vice president, Dick Cheney, during a discussion with then Washington correspondent for …

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Feb 13 2015

Obama’s Blank Check for His Neverending War

In an effort to get approval for a war that has been going on for the last six months, President Barack Obama sent a request to Congress for authorization for the use of force (AUMF) in connection with the Islamic State of Iraq and the Levant. There are some in congress, on both sides of the aisle in both houses, feel that this is just another blank check for the perpetual war against terror. During a panel hearing, Representative Alan Grayson (D-FL) asked some very pointed questions about the language in the letter. The panel members were former Ambassador James Franklin Jeffrey, Rick Brennan, a senior political scientist at the RAND Corporation, and Dr. Dafna Hochman Rand, former staff member on Obama’s National Security Council.

GRAYSON: Thank you. Section 2C of the president’s draft authorization for the use of military force reads as follows: The authority granted in subsection A does not authorize the use of US armed forces in enduring offensive ground combat operations. Ambassador Jeffrey, what does ‘enduring’ mean?

JEFFREY: My answer would be a somewhat sarcastic one. Whatever the executive at the time defines enduring as, and I have a real problem with that.

GRAYSON: Dr. Brennan?

Brennan: I have real problems with that also. Not only because it’s… I don’t know what it means. I can just see the lawyers fighting over the meaning of this. But more importantly, if you’re looking at committing forces for something that you are saying is either vital, or important interest of the United States, and you get in the middle of a battle, and all of a sudden are you on offense, or are you on defense? What happens if neighbors cause problems? Wars never end the way that they were envisioned. And so I think that that’s maybe a terrible mistake to put in the AUMF.

GRAYSON: Dr. Rand?

Rand: Enduring, in my mind, specifies an open-endedness, it specifies lack of clarity on the particular objective at hand.

GRAYSON: Dr. Rand, is two weeks enduring?

RAND: I would leave that to the lawyers to determine exactly.

GRAYSON: So, your answer is you don’t know, right? How about two months?

RAND: I don’t know. Again, I think it would depend on the particular objective, enduring in my mind is not having a particular military objective in mind.

GRAYSON: So you don’t really know what it means. Is that a fair statement?

RAND: Enduring in my mind means open ended.

GRAYSON: Alright, section five of the draft of the authorization of the use of military force reads as follows: In this resolution the term associated persons or forces means individuals and organizations fighting for, on behalf of, or alongside ISIL, or any closely-related successor entity in hostilities against the United States or its coalition partners. Ambassador Jeffrey, what does “alongside ISIL” mean?

JEFFREY: I didn’t draft this thing. But,

GRAYSON: Nor did I.

JEFFREY: Nor did you, but I would have put that in there if I had been drafting it, and the reason is, I think they went back to 2001, of course this is the authorization we’re still using, along with the 2002 one for this campaign, and these things morph. For example, we’ve had a debate over whether ISIS is really a element of Al Qaeda; it certainly was when I knew it as Al Qaeda in Iraq in 2010 to 2012, and these semantic arguments confuse us and confuse our people on the ground, in trying to deal with these folks. You’ll know it when you see it if it’s an ISIS or it’s an ally of ISIS.

GRAYSON: How about the Free Syrian Army, are they fighting alongside ISIL in Syria?

Jeffrey: No, they’re not fighting alongside ISIL, in fact often they’re fighting against ISIL, and ISIL against them in particular.

GRAYSON: What about Assad, is he fighting for or against? It’s kind of hard to tell without a scorecard, isn’t it?Jeffrey: It sure is.

GRAYSON: Yeah. What about you Dr. Brennan, can you tell me what “alongside ISIL” means?

Brennan: No, I really couldn’t. I think that what, you know, it might be… the 9/11 Commission uses the phrase “radical islamist organizations” and I think maybe if we went to a wording like that, it includes all those 52 groups that adhere to this type of ideology, that threaten the United States. But we’re putting ourselves in boxes and as you said Sen… Congressman, I’m trying to understand what that means, what the limits are… who we’re dealing with, it’s very confusing.

GRAYSON: Dr. Rand.

RAND: Well, first of all, I believe that the confusion is probably a function of the fact that this is an unclassified document, so it’s not going to specify exactly which groups are considered associates; that would be for a classified setting. But second, as I said in the testimony, the nature of the alliances within ISIL are changing and are fluid, and those who are targeting, the military experts, know exactly who is a derivative, or an associate, or an ally of ISIS at any given moment.

GRAYSON: Why are you so confident of that? It seems to me that it’s a matter of terminology, not a matter of ascertainable fact.

RAND: Based on my public service. I’ve seen some of the lawyers (?) and some of the methodologies, and-(cut off)

GRAYSON: Okay. Here’s the $64 billion question for you, Ambassador Jeffrey, and if we have time, for you others. If you can’t tell us, you three experts can’t tell us what these words mean, what does that tell us? Ambassador Jeffrey.

JEFFREY: That it’s very difficult to be using a tool basically designed to declare war or something like war on a nation-state, which has a fixed definition, against a group that morphs, that changes its name, that has allies, and other things. Do we not fight it? We have to fight it. Are we having a hard time defining it? You bet.

GRAYSON: Dr. Brennan?

BRENNAN: I’d agree with the ambassador. I think the issue we that need to be looking at is trying to broaden terminology and understand that it is a tenet, or organizations and groups that adhere to this ideology, and make it broad enough that if one pops up in a different country that is doing the same thing, that is a sister of this organization, the President has the authority to act.

GRAYSON: Dr. Brennan, I think you just described a blank check, which I’m not willing to give to the President or anybody else. But thank you for your time.

H/T John Amato at Crooks and Liars

Mar 07 2013

Answer the question, Mr. President

How much has President Obama told us about his ability to kill Americans at home?  

The question is pretty simple. The answer might not be that simple but it is an answer that is deserved by the American people, no matter how laborious it is to explain that answer clearly.

How much has President Obama himself told Americans about his claimed ability to target, detain and assassinate us?  For years, we were given no answers that I know of.

We, the public, have gotten access to a white paper (PDF), not the actual legal memos, and that was leaked by a journalist, Michael Isikoff.

Some senators on the Senate Intelligence Committee (SSCI) have now received several legal memos after they threatened to filibuster some of his nominees.   There are, we believe, eleven in total.  The president released two more memos for the SSCI to review.  They are not allowed to show them to their staff or make any record of them.  The review period is temporary. The public has not been given any access to them, even though, as we now know, the president, through his attorney general, told us that the president does assume the power to kill us, even at home.  But he still dodged the direct question that has been asked of him by both citizens (in a Google+ hangout session), by a formal letter from Senator Rand Paul, and by many others.  Holder gave some information, but left the question still very much up in the air.

Conor Friedersdorf, a staff writer at The Atlantic, says that Holder’s recent response is “non-responsive, evasive, and deliberately manipulative”.  I agree.  Significant pressure needs to be applied by all concerned Americans until we understand clearly what power this president has assumed, what kinds of things might get us killed, or what circumstances might put us in close proximity to someone else they might target for assassination.  Many innocent civilians have been killed overseas by this president because they were somehow associated, intentionally or not intentionally, with the target of a drone or cruise missile strike.

Dec 22 2011

Yes, We Can: The Case for Indefinite Detention & Rendition

Twist as the president’s supporters might with the “look over here” tactic, the National Defense Authorization Bill (NDAA) does not change any existing law that Barack Obama has interpreted to mean he has the power to throw your sorry butt in prison anywhere in the world for as long as he chooses. Or he can just declare you a terrorist without providing evidence and have you executed without due process. Ignoring the Authorization to Use Military Force (AUMF) that was recently renewed giving the president the authority to send in the military to fight that ubiquitous enemy “terror”, the Obama loyalists, keep pointing to section 1022 of the NDAA, the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens, while completely ignoring section 1021, the section that affirms the President’s authority to indefinitely detain people generally. As Marcy Wheeler at emptywheel points out while the NDAA does not authorize indefinite detention for American citizens, it does not foreclose the possibility either:

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t-at least according to the unrebutted claims of Carl Levin that I reported on over a month ago-is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

   The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

Nor did the amendment from Sen. Diane Feinstein clarify that point either, in fact, she may have codified it. So the only recourse is for some poor fool to have his civil liberties abrogated and try to fight in court without being allowed access to lawyers or courts. Those are some hurdles. Scott Horton, contributing editor at Harper’s magazine and New York attorney known for his work in human rights law and the law of armed conflict, discussed this with Keith Olbermann:

Constitutional expert and George Washington University law professor, Jonathan Turley, appeared on C-Span with his take on this discussion. He made it very clear that Obama says that he can assassinate American citizens living on U.S. soil:

(starting at 15:50):

President Obama has just stated a policy that he can have any American citizen killed without any charge, without any review, except his own. If he’s satisfied that you are a terrorist, he says that he can kill you anywhere in the world including in the United States.

Two of his aides just … reaffirmed they believe that American citizens can be killed on the order of the President anywhere including the United States.

You’ve now got a president who says that he can kill you on his own discretion. He can jail you indefinitely on his own discretion [..]

I don’t think the the Framers ever anticipated that [the American people would be so apathetic]. They assumed that people would hold their liberties close, and that they wouldn’t relax …

h/t Washington’s Blog

How quickly the president’s defenders forget Anwar al-Awlaki. Marcy points to the contortions of the law that Obama used to justify his assassination and then issued a “secret memorandum” which was conveniently “leaked” to New York Times reporter Charles Savage:

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

           

  • The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)
  •            

  • Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF
  •            

  • Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission
  •            

  • Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others
  •    In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention.

    There is no question that the Obama administration, by signing the NDAA, believes that it has the broad power to indefinitely detain and assassinate American citizens and guarantees that the next president will too.

    The late George Carlin said it several years ago, “this country is circling the drain“.  

    May 25 2011

    Cry For This Country

    This country stands on the edge of no longer existing as the Founding Father’s envisioned in the Constitution. Congress is about to infer on the Executive branch unprecedented power to wage war anywhere, detain or assassinate anyone, anywhere without due process and continue the expansion of the national security and surveillance state. The renewal of the reviled Patriot Act, is slated to be passed by congress with bipartisan approval today. As Jon Walker so astutely observes:

    The often praised “bipartisanship” is rarely ever the product of both parties coming together around what the people want, and almost always about using each other as cover to avoid electoral consequences for voting in opposition to the will of the electorate.

    The controversial Patriot Act, a bill once despised by almost every Democrat, passed cloture in the Senate on Monday night by 74 to 8. As Glen Greenwald noted only bills in support of Israel get this kind of near unanimous support. Eight Senators voting against cloture were Independent Sen. Bernie Sanders, Democrats Jeff Merkley, Mark Begich, Max Baucus, and John Tester, and GOP Senators Lisa Murkowski, Rand Paul, and Dean Heller. Tester and Paul spoke out specifically, objecting to the most egregious parts of the bill and the need for reform.

    I have to give Rand Paul credit here, demonstrating more integrity than Obama, since he is insisting on these reforms and will use delaying tactics to prevent the bill’s re-authorization without them despite threats from Sen Diane Feinstein, Chair of the Senate Intelligence Committee.

     Sen. Paul announced that he was considering using delaying tactics to hold up passage of the bill in order to extract some reforms (including ones he is co-sponsoring with the Democrats’ Judiciary Committee Chairman Sen. Leahy, who — despite voicing “concerns” about the bill — voted for cloture).  Paul’s announcement of his delaying intentions provoked this fear-mongering, Terrorism-exploiting, bullying threat from the Democrats’ Senate Intelligence Committee Chair, Dianne Feinstein:

       “I think it would be a huge mistake,” Feinstein told reporters. “If somebody wants to take on their shoulders not having provisions in place which are necessary to protect the United States at this time, that’s a big, big weight to bear.”

    In other words:  Paul and the other dissenting Senators better give up their objections and submit to quick Patriot Act passage or else they’ll have blood on their hands from the Terrorist attack they will cause.  That, of course, was the classic Bush/Cheney tactic for years to pressure Democrats into supporting every civil-liberties-destroying measure the Bush White House demanded (including, of course, the original Patriot Act itself), and now we have the Democrats — ensconced in power — using it just as brazenly and shamelessly (recall how Bush’s DNI, Michael McConnell, warned Congressional Democrats in 2007 that unless they quickly passed without changes the new FISA bill the Bush White House was demanding, a Terrorist attack would likely occur at the Congress in a matter of “days, not weeks”; McConnell then told The New Yorker: “If we don’t update FISA, the nation is significantly at risk”). Feinstein learned well.

    Paul and Sen. Patrick Leahy (D-VT) are preparing  to introduce an amendment to the PATRIOT Act that would phase out some of the most controversial components of the national security law but that may not happen. Senate Majority Leader Harry Reid is preparing to do an end run around Senate procedures by including the Patriot Act in another bill from the House that has already passed in the Senate but was amended in the House. David Waldman explains this better:

    Harry Reid turned the Senate around in it consideration of the PATRIOT Act renewal. Instead of fighting it out on cloture on the motion to proceed to the bill, and then having to fight another cloture battle on the bill itself, he’s pulling a nifty parliamentary trick that allows him to skip on of the cloture fights. The House just got done passing S. 990, a small business bill, and has sent it back to the Senate, apparently amended in some way (although they passed it under suspension of the rules, which doesn’t permit amendments, so I missed whatever process they might have used to change it between receiving it on Monday and passing it on Tuesday).

    At any rate, the bill having been amended, it now returns to the Senate for their approval of its new form. And here’s where the trick comes in: Reid will move to agree to the House amendment, but add just one more. That additional amendment will be… to remove the entire existing text and replace it with the text of S. 1038, the PATRIOT Act renewal bill they were just trying to get to the floor.

    Why do that? Because although you can filibuster the amendment (or technically, the motion to concur in the House amendment with a further amendment), if you manage to get cloture on that and vote it through, it has the effect of sending a completed PATRIOT Act bill over to the House, with no second cloture vote needed.

    It’s a nifty trick and I always admire it, but I wish it wasn’t happening with the damn PATRIOT Act.

    It seems that Congress and the President are determined to continue shredding the Constitution by extending the Patriot Act another 4 years. I cry for this country.

    Nov 16 2010

    Suprise! Forever War

    Nothing new here, just more of the same, reinforced.

    Coming Soon: Congress Revisits the Authorization to Use Military Force

    By: Spencer Ackerman Monday November 15, 2010

    As I tweeted and wrote for Danger Room today, the incoming chairman of the House Armed Services Committee, Rep. Buck McKeon, briefly argued in a speech today that Congress should “reaffirm – in statute – the Authorization to Use Military Force of 2011.” To expand on that: McKeon mentioned the AUMF in the context of detainee policy – that is, to keep terrorism detainees out of federal courts. But it clearly goes beyond that. Here’s what a McKeon aide told me:

    The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.” Sounds like the shadow wars may get some sunshine.

    For the Obama administration, AUMF has operated like an Emergency Law, providing blanket authorities for things like drone strikes beyond Afghanistan that are never mentioned in the brief 2001 language. A new AUMF would at least be more specific about what powers Congress actually intends the president to have to conduct a war against al-Qaeda – as well as, perhaps, what the boundaries of those authorities might be. It’s still not a declaration of war – my understanding is there’s not an appetite for that in Congress – but it also would represent the first congressional reconsideration of the scope of a war that, in practice, is endless. That could go in any number of directions, but at least it’ll be debated.

    This is a means to justify the drone attacks in Pakistan and Yemen or any other country the US deems a threat, as well as, to “justify” the illegal, indefinite detention of persons that the US decides is too dangerous to release.

    We Will Always Be at War against Everyone

    By: emptywheel Tuesday November 16, 2010

    But there are two other aspects to a “reaffirmed and strengthened” AUMF. As McKeon’s aide notes, the enemy has changed geographically, moving to Yemen and Somalia. A new AUMF will make it easier to build the new bases in Yemen they’re planning.

    The U.S. is preparing for an expanded campaign against al Qaeda in Yemen, mobilizing military and intelligence resources to enable Yemeni and American strikes and drawing up a longer-term proposal to establish Yemeni bases in remote areas where militants operate.

    And I would bet that the AUMF is drafted broadly enough to allow drone strikes anywhere the government decides it sees a terrorist.

    Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…