Extending Invented War Powers

Are we at war? The Korean and Vietnam Wars were called that popularly, but the first was officially our participation in a UN police action. We were, on the record, supporting the UN there, no more than that, so it was not a war, really. It just looked like one. Regarding Vietnam, what the Gulf of Tonkin Resolution of 1964 established is still unclear, but one way to look at it is to say it was a resolution ceding the authority to wage war to the executive branch, as the legislative branch didn’t want to decide or declare anything – in short, it was tossing the constitutional authority and prerogative to declare and wage war down the street to the White House. “Yeah, it’s our job, but you decide” – an admission that the constitution doesn’t work in this modern world – one man in the White House should decide these things. It’s quicker, more efficient, and, if you’re in Congress you don’t catch crap when things go badly. Anyway, you’re not given all the information, or you’re lied to, so just how can you decide? Let the executive do what it will, and that’s what it did with that resolution. Lyndon Johnson flooded Vietnam with, finally, more than a half-million American troops – but there was a reaction. The War Powers Resolution of 1973 tried to walk that back a bit – now the president has to notify Congress within forty-eight hours of committing armed forces to military action, and forbids those armed forces from remaining for more than sixty days wherever they were sent, except for a thirty-day withdrawal period, unless the president gets an authorization for the use of military force or a declaration of war.

Yeah, right – the last official declaration of war was for WWII – after Pearl Harbor – so no modern president is getting one of those. Bush got his Authorization for Use of Military Force instead – a joint resolution passed by Congress on September 14, 2001, authorizing the use of our armed forces against those responsible for the attacks on September 11, 2001 – giving George Bush authorization to use all “necessary and appropriate force” against those he determined “planned, authorized, committed or aided” the September 11th attacks, or who “harbored said persons or groups.” Bush alone, with the help of the Cheney-Rumsfeld crew, was to determine who “planned, authorized, committed or aided” those attacks, or might do the same, and he could decide what was necessary and appropriate. It was all in his hands. Once again, Congress just walked away – and the logical war in Afghanistan turned into that odd war in Iraq that no one could really explain, but the larger war was never a war with any specific country anyway, just al-Qaeda, and then with those inspired by al-Qaeda, or like al-Qaeda in unpleasant ways, until it became a generalized War on Terror. It had no limits and there were no borders. Then we discovered that kidnapping and torture were necessary and appropriate, as was wiretapping everyone at all times, as probable cause was no longer a necessary and appropriate consideration. That was codified in the Patriot Act that liberals howled about. They were told that the Constitution isn’t a suicide pact. They weren’t happy with that glib and smug answer to their concerns, but it didn’t matter. The law was the law, as vague and frightening as it was.

All this is still the law. The Patriot Act has been renewed again and again, and that original Authorization for Use of Military Force is still in effect. No politician dare question either – one cannot declare oneself against patriotism after all, and the bad guys are still out there, at least what’s left of them. Neither law will be rescinded – no one would propose that – so Obama has the same authority to do any damned thing he wants to do, to keep us safe, just like Bush, and Obama uses that authority. He’s no fan of torture, and always thought the Iraq War was the stupid war and ended it, but the wiretapping continues, and in place of torture we now conduct targeted assassinations with missile-carrying drones, even in countries where we have no permission to set foot, and even against our own citizens if we find them there – no questions asked.

What can a president do and not do? Obama turned into Bush. He does what he alone thinks is necessary and appropriate, after he’s consulted with his team – there are no other rules. Congress said so long ago and never changed their minds, even if liberals still fret, even about Obama.

As least Obama isn’t gleeful about his inherited unlimited powers, and has tried to work out a legal framework for assassinating our own citizens on his word alone:

Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in Al Qaeda who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible, according to a 16-page document made public on Monday.

The unsigned and undated Justice Department “white paper,” obtained by NBC News, is the most detailed analysis yet to come into public view regarding the Obama legal team’s views about the lawfulness of killing, without a trial, an American citizen who executive branch officials decide is an operational leader of Al Qaeda or one of its allies.

It’s pretty straightforward, citing a national right to self-defense as well as the laws of war, and it’s pretty general:

The memo appears to be a briefing paper that was derived from the real legal memorandum in late 2011 and provided to some members of Congress. It does not discuss any specific target and emphasizes that it does not go into the specific thresholds of evidence that are deemed sufficient.

It adopts an elastic definition of an “imminent” threat, saying it is not necessary for a specific attack to be in process when a target is found if the target is generally engaged in terrorist activities aimed at the United States. And it asserts that courts should not play a role in reviewing or restraining such decisions.

Yeah, keep the courts out of it:

The white paper states that “judicial enforcement of such orders would require the court to supervise inherently predictive judgments by the president and his national security advisers as to when and how to use force against a member of an enemy force against which Congress has authorized the use of force.”

It also fills in many blanks in a series of speeches by members of the Obama legal team about the use of force in targeted killings, including remarks by Attorney General Eric H. Holder Jr. at Northwestern’s law school in March. He asserted that the Constitution’s guarantee – of “due process” before the government takes a life – does not necessarily mean “judicial process” in national security situations…

The director of the American Civil Liberties Union’s National Security Project isn’t too happy – “It’s hard to believe that it was produced in a democracy built on a system of checks and balances. It summarizes in cold legal terms a stunning overreach of executive authority – the claimed power to declare Americans a threat and kill them far from a recognized battlefield and without any judicial involvement.”

That’s just what it does, but there’s Eric Posner – a professor at the University of Chicago Law School, who is the co-author of The Executive Unbound: After the Madisonian Republic so you know where he stands. Posner says things are complicated here:

All you need to know in order to understand the memo is that Obama administration lawyers have enthusiastically endorsed the once-vilified Bush administration decision to classify security operations against al-Qaida as “war” rather than as “law enforcement.” This was not an inevitable decision. Obviously, the use of military force in Afghanistan was a military operation, and to the extent that members of al-Qaida joined Taliban soldiers in defending the Afghan homeland against the U.S. attack, they could be killed on sight and detained without charges, as is permitted by the international laws of war. But the U.S. government could otherwise have regarded al-Qaida as a criminal organization like a street gang or drug cartel. Outside the battlefield in Afghanistan, the government would then have pursued members of al-Qaida with conventional law enforcement measures.

If the administration had taken the law enforcement approach, members of al-Qaida who are American citizens would have had the same rights to due process that are familiar from everyday policing. We would send FBI agents to foreign countries like Yemen after obtaining permission from governments to conduct joint law enforcement operations. Or we would have asked foreign governments to arrest suspected members of al-Qaida and extradite them to the United States. We could not have sent drones to kill them. We would have offered them trials in civilian courts.

John Kerry suggested that in 2004 and lost to Bush. The law enforcement approach is more logical given the actual threat, but cumbersome. Still, what we decided as an alternative is also troubling:

Congress did not authorize war (only) against Afghanistan; it also authorized war against al-Qaida. That meant that members of al-Qaida would be treated as belligerents. U.S. forces could shoot them on sight, just as they could drop bombs on German military formations during World War II. They could detain suspected al-Qaida members without charging them or giving them trials and hold them as detainees, just as thousands of German soldiers were held as detainees during World War II. And it doesn’t matter if you’re an al-Qaida member who happens to be a U.S. citizen, just as it didn’t matter if you were a German soldier who happened to be an American citizen during World War II. U.S. forces could capture or kill American citizens who joined German forces and detain them as POWs, and they did so.

That said, clearly the analogy is not perfect, and the memo lays out a narrower standard for killing U.S. citizens than would be used in a conventional war. It must be the case that (1) an informed, high-level U.S. official believes that the individual in question poses an imminent threat of violent attack; (2) capture is not feasible; and (3) the operation complies with the laws of war. The author of the DOJ memo pulls these requirements out of his or her hat.

This is followed by a discussion of the 2004 war-on-terror case Hamdi v. Rumsfeld – which adopted the rule from an old case called Mathews v. Eldridge – one must “balance” the private interest and the government interest. The “private interest” now is the target’s interest in staying alive. That may not be in the government’s interest. It’s a brutal argument and Posner adds more that’s odd here:

First, a “high-level” official (the president?) must make the determination rather than someone else in the military hierarchy, which is not the case in ordinary warfare. Nor do normal military operations require a determination that capture is infeasible before the use of lethal force. It may well make political sense for the U.S. government not to kill a U.S. citizen via drone attack without these determinations, but it is hard to see why any of this is legally required once one accepts the premise that al-Qaida, and its associated forces, pose a military threat in the same way that Nazi Germany did.

To be sure, al-Qaida does not pose as much a military threat, but no one has ever argued that this makes any difference. The unstated premise must be that a roving assignment to kill anyone who is a member of al-Qaida, or seems like a member of al-Qaida, or a member of an “associated force” of al-Qaida, which may well mean any Islamic terror group or even charity, is more questionable and more subject to abuse than an order to shoot a member of the armed forces of a belligerent state. So the memo limits somewhat the degree of executive discretion by using elastic terms. (How high is “high”? How feasible is capture? What is an “associated force”?) In the end, all of this will do little to constrain anything.

The concept of the imminence of the threat the target poses is vague here too:

It turns out that the high-level official does not actually need to believe that the targeted individual is in the process of launching an attack or is about to start one. That would be too high a bar. Instead, the memo assumes that al-Qaida is constantly planning attacks, so anyone who is an “operational leader” and “is personally and continually involved in planning terrorist attacks” against the United States counts as an imminent threat. They don’t sleep or go on vacation – they are always fair game.

This is not a crazy view. German soldiers during World War II were fair game even when they were asleep in their barracks. But the question is why the lawyers would at once focus on the word imminence and ignore its meaning.

The only reason I can think of is that international law says that military force can be used in self-defense only against imminent threats, and many international lawyers resist the idea that the United States can be at war with al-Qaida (because it is neither a nation-state nor a conventional insurgency) or with “associated forces,” which may be any group, anywhere in the world, that interacts with or shares the ideology of al-Qaida.

Yes, there is that too:

A drone strike against a member of al-Qaida in a country that has not given permission for such a strike would certainly count as such a crime of aggression – unless it was part of a war of self-defense, that is, a response to an “imminent” threat. Calling any use of military force against al-Qaida a response to an imminent threat may be an effort to forestall future accusations of war crimes against Obama administration officials similar to those directed at Bush administration officials. But if so, it’s a flimsy one.

Posner is troubled by all this:

Obama and Bush administration lawyers have stretched the Constitution and traditional rules of international law to accommodate the threat posed by terrorism. Some people will say they violated the law. But given the political consensus supporting these moves within the U.S., it is more accurate to say that the law has evolved. It gives the president the discretion he needs, or at least wants, to address an amorphous threat. Let’s hope he uses that discretion wisely.

Hope is a poor substitute for effort, as they say, but hope may have to do here. The law has evolved, or devolved, but the noted constitutional lawyer, Glenn Greenwald, says the Constitution should still count for something:

This is the crucial point: the memo isn’t justifying the due-process-free execution of senior al-Qaida leaders who pose an imminent threat to the US. It is justifying the due-process-free execution of people secretly accused by the president and his underlings, with no due process, of being that. The distinction between (a) government accusations and (b) proof of guilt is central to every free society, by definition, yet this memo – and those who defend Obama’s assassination power – willfully ignore it.

Conor Friedersdorf simply hears ugly echoes of George Bush:

The part of the memo worth dwelling on most, at least until legal experts offer deeper analysis than I confidently can, is the portion that deals with “an imminent threat of violent attack.” On reading the document, that clause is sort of reassuring. After all, there aren’t that many circumstances when an attack is imminent. It would seem to severely constrain extrajudicial assassinations. As it turns out, however, the memo reassures the reader with the rhetorically powerful word “imminent,” only to define imminence down in a way that makes it largely meaningless – so much so that it’s actually reminiscent of George W. Bush’s misuse of imminent to characterize the threat posed by Iraq.

We were manipulated once before, with disastrous results, and here we go again, and the ACLU’s Jameel Jaffer is on the same page:

The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated. The paper initially suggests, for example, that the government’s authority to use lethal force is limited to people who present “imminent” threats, but it then proceeds to redefine the word imminence in a way that deprives the word of its ordinary meaning. The paper does something similar with the phrase “capture is infeasible.” It initially sounds like a real limitation but by page 8 it seems to mean only that the government won’t use lethal force if capture is more convenient. It’s the language of limits – but without any real restrictions.

Marc Ambinder adds this:

Even if the person is not actively planning terrorist attacks against the U.S., because of the nature of terrorist attacks in general, merely his membership in an organization that is planning those attacks meets the requisite definition of imminence. So, basically, imminence does not mean imminent.

It’s like the Bush years. Torture is not torture – it really is enhanced interrogation – and words start to lose all meaning.

There are other problems. Gerard N. Magliocca suggests here “that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed” – because this is so damned vague:

First, who counts as a high-level official? The CIA Director? The Ambassador to Pakistan? An analyst at Langley? This is not clear at all. Second, suppose that the majority view in the intelligence community is that someone does not pose an imminent threat. The standard for death, I gather, is met so long as ONE informed, high-level person thinks that a suspect poses an imminent threat. I submit that the President can always find one “senior-enough” person in his Administration with that view, so in reality the DOJ standard just gives the White House carte blanche.

At the site Reason, Jacob Sullum nails the real problem:

The problem is that to accept this position, you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.

Adam Serwer puts it more bluntly:

The government needs the approval of a judge to detain a suspected terrorist. To kill one, it need only give itself permission.

But let’s go back to 1964. A Navy destroyer might have been attacked by one or two small gunships in the Gulf of Tonkin – it was never that clear – but somehow that led to full war in Vietnam. The Gulf of Tonkin incidents, that somehow justified Lyndon Johnson sending in a half a million troops all of a sudden, showed the imminent threat – and the second and most important of these attacks probably never happened at all. What? We should have known better, but we started writing laws that told the president to do whatever he thought necessary, because no one else wanted to be bothered – and one such law led to another and then another. Now it’s the targeted assassination of pesky American citizens. We’ve come a long way. We just didn’t end up in a good place.

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About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Drone Warfare, Justifying Killing American Citizens, Obama Continues Bush War on Terror, Presidential War Powers and tagged , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

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