No Wonder the Administration Didn’t Want Buck McKeon’s New AUMF; Marty Lederman Already Gave Them One

Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn’s emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn’s emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

19 replies
  1. rugger9 says:

    This is the money observation, IMHO, since the enemy combatant du jour can be anyone, even Quakers and Raging Grannies:

    >>>
    One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.
    <<<

    One thing to remember: this set of policies has not been litigated. Yes, we do indeed have killings [Awlaki, Khan, and Derwish] that are essentially murder, and we have a WH claim that the AUMF says something it doesn't say [and FWIW, does the Arabic really translate to AQAP?], which is something that administrations have done from the beginning. After all, Lincoln overstepped his bounds by suspending the writ of habeus corpus [Congress has that authority according to SCOTUS], Andrew Jackson did so in torpedoing the Bank of the United States, so the concept of pushing the envelope of power is not new.

    Awlaki's, Derwish's, and Khan's relatives should file a civil rights suit, under the 5th, 6th, 8th, and 14th Amendments, for starters, just to force the memo out into the open. These were AMERICAN CITIZENS. There is a reason that only Congress was given the power to declare war, and NOT the POTUS, and it is now plain for all to see. Power granted to a person eventually becomes power abused [e.g. the War Powers Act].

  2. emptywheel says:

    @rugger9: And even the crappy DC Circuit habeas decisions would be ambivalent on this front. While they’ve accepted the Taliban=legitimate AUMF target, they’ve gotten a little more squeamish when they get further from core AQ.

    Mind you, given that circuit, they’d ultimately uphold the govt. But still, even where it has been litigated the record is not aggressive on that front.

  3. phred says:

    @der: What laws?
    Without enforcement, laws are not worth the paper they are printed on. Not only are we not enforcing a law here or there, various articles of the Constitution are being ignored wholesale and the courts either stick their fingers in their ears, singing lalalalala, or they embrace the willful wanton destruction of the rule of law by government actors.

    We are no longer a country of laws.

  4. rugger9 says:

    @emptywheel:
    Twinges of conscience, perhaps, for even they can see how slippery the slope is here. Assuming Obama is reelected, we may see some other changes as well since Obama won’t be running again.

  5. rugger9 says:

    @bmaz:
    And it seems to me that Darth’s book is basically telling Obama to “bring it on”, like one of the stupidest things Shrub ever said as President. Even my reactionary Faux News bro could see that one.

  6. Jeff Kaye says:

    There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case. [Emphasis added]

    I’m not sure I understand. Could you elaborate on the point in bold? Perhaps I’m stuck on the word “legally,” because is that not what Obama (and before him Bush) said they were doing. What is legal? Is that not a matter for opinion and judicial and legislative review (though the two branches have different ways of dealing with such opinions).

    The other problem I have is with the idea of a state “waging war” on its own citizens (and “legally”, no less). This is a far, far distance from a state that relies on the consent of the governed, with respect and protection of minority opinions. I know you know that, but I’m still wondering where you would find such a “war” legal?

    The rest of the article makes excellent points, and it is with grim satisfaction that I watch yet another sellout of the supposed respectable liberal class. The liberals have done as much to harm this society anyone else, including the conservatives. They just have their own stiletto-like style.

    As for Congressional oversight, it’s practically nil. Though it certainly deserves hearings, Issa’s supposed issuance of subpoenas in the “Fast and Furious” fiasco (okay, bmaz, the “Gunwalker” case) are unlikely to result in the far-reaching investigation that is necessary. In the hands of the GOP, it will be an exercise in Holder-demolishing and Obama-bashing. While they certainly deserve obloquy for arming the Mexican cartels, the larger covert strategy behind it will most likely never be mentioned. It will be presented as a giant mistake, and not in fact planned policy. Even now, CNN and most reports refuse to mention the fact that ATF agents have repeatedly said they were told to “stand down” and not act on the acquisition of the guns.

    As with the various “stand down” orders that surrounded intelligence and law enforcement in the months before 9/11, the government that operated Gladio for decades in secret, and used false flag operations to whip up fear of “terrorists”, persistently implements the same policies. I believe, though with less evidence at this point, this is what we will finally discover the anthrax attacks (which Jim White is so admirably covering here) were all about. The “strategy of tension” is alive and well in the 21st century.

    On false flag ops and history of Gladio, see this excellent article at Wikipedia, put together by someone who is knowledgeable.

  7. bmaz says:

    @emptywheel: No they have not been consistent at all. And this is precisely why some people – alright there were about five of us – were screaming when not even the foundational Kiyemba III case was accepted for review, and with Kennedy likely being a, if not the, pivot point on not accepting cert. It is criminal for the DC District anything flies opinions to be controlling this area of law. Of course, while there was once promise at the Supremes, at this point you have to wonder if they wouldn’t just ratify the whole lot of BS from the DC District, because that is the easy way out.

  8. Mary says:

    @bmaz: Or, easier still, just not take cert and ignore. Which appears to be the gameplan. God forbid that they should have Clarence Thomas’ wife picketing their homes and telling the tea partiers their schedules.

    There were even a few of us who, Balkinization notwithstanding, were less than thrilled to see Lederman going to Obama’s OLC (nice, how he and Barron sign off on what are de facto kill approvals, then disappear out of service so they don’t have to answer any Congressional questions. The main takeaway Lederman always had from the Yoo/Goldsmith Ashcroft/Gonzales/Mukasey crap was along the lines of Obama’s “immoral, but not illegal” i.e., he ALWAYS argues that there should not be any consequences to someone who engaged in depravity as long as there was an OLC memo, however off point, lurking in the background.

  9. bmaz says:

    @Mary: Well, I think that because many saw objections to Bush/Cheney policy and actions, and that some of it lined up with the general tenor of folks like us here and Greenwald etc, that actors like Lederman and Barron were more dogmatic in their opposition than they really were. I always, while appreciative of many of their points, read them as being more nuanced. Often the complaints, if dissected properly, were more about how it was being done, not that it couldn’t and shouldn’t be done. Still, I am surprised they would have really signed what Charlie Savage related. I hazard a very strong guess it is much more couched, as Marcy speculated, than is being let on.

  10. Mary says:

    Whew – good to see this. Eric Holder is back from the soup kitchen and incensed over the suggestion that the DOJ would become an accessory to murder. Absolutely NOT! Those murderers stand alone – they do not have DOJ backing and support and … accessorization.

    “Holder wrote that he could not ‘sit idly by’ as Rep. Paul Gosar (R-AZ) ‘suggests, as happened this week, that law enforcement and government employees who devote their lives to protecting our citizens be considered “accessories to murder.”‘”

    Oh – wait – that wasn’t the DOJ/OLC memo on assassinations of Americans – I think he was talking about he DOJ/ICE House of Death … ummmm, no, it looks as if he’s talking about the DOJ/FBI Fast and Furious program.

    In any event, he’s sure that “employees who devote their lives to protecting our citizens” aren’t going to provide the dangly, sparklies for guys who go around killing. Nah, not gonna happen.

  11. phred says:

    Who knew it was possible for Holder to be an even greater embarrassment than Gonzales? At least one got the sense that Gonzales was well and truly in over his head. Holder is smart guy, which means his only excuse is corrupt dishonesty.

    I wonder what Holder does all day, since investigating and prosecuting criminal activity is clearly not in his job description. Maybe he just shoots hoops with the Billion Dollar Assassin…

  12. JohnLopresti says:

    Some folks might want to compare MSL’s third week of May, last, article about the Abbotabad incident, there.

    One eccentric thought that occurred to me while reading the prior post from emptywheel concerning target 2 in the 3 target drone incident which involved aqap’s preacher was how the unpublished old research paper from msl might have addressed matters beyond the obvious sort which the above link re obl would have omitted: namely, taking an establishment clause filter to the eo12333 parsing. My view was that is a place no one virtually wants the sort of work olc does to travel. The unitary executive is going to tke a more US constitutional pathway to mapping out its available matrix of activities, and not get into retorts based upon theophanies, where nationless actors have a more solid reference point, namely, in deity. There, too, there are pitfalls, though we have an ample supply of mere humans who likely would be first to say the word from the almighty finds expression in their writings.

    Less cavillingly, I support reading the link one commenter provided in that other yesterday thread, to Bruce Ackerman’s call for a more explicit congressional review and stipulation of the licit constructs for the migrating panels of advisors upon which a president relies for matters involving the gwot. Ackerman basis his comments not on rumor, but a desire for more clarity about how the executive is proceeding in the aqap theater, generally. To save the reader the bounce to the other thread, the primary Ackerman elaboration is there; it links thru to 2 other items, one of his own authorship. See below the fold

  13. JohnLopresti says:

    Below the fold: re my @14. Addendum:
    I would add one other mention; this, from BLT: there, merely reporting msl’s departure back to school in late July last year, at that time status after ~18 months on the job without a congressional committee ratification of his appointment.

  14. earlofhuntingdon says:

    As you say, any new “authorization” begs the question of why it is needed, which would inevitably expose past actions that were unauthorized and/or illegal or ultra vires, outside the scope of authorized action and hence open to legal challenge, nullification or – worse – claims that such action violated another’s rights in a compenseable or punishable way.

    The administration and its handmaiden in illegality, Congress, needs to find a way to pixie dust away the administration’s past illegal or unauthorized – and hence, challengeable – conduct in a way that hides past wrongs, ratifies them, and makes them “legal” going forward, or at least hard or impossible to challenge in open court or public debate.

    Bush’s illegal domestic spying was “fixed” by later statutes that claimed to ratify and immunize past criminal acts. As with Bush v. Gore, government acts that were supposedly non-precedential become precedents for immunizing future government wrongs. All of them are kept secret so as to avoid political, public and legal accountability. We are well on our way to becoming a Congo. All we need are a few shovels, lots of natural resources, and offshore havens willing to hide the loot our elites scarper away with, all of which seem durably in place, except perhaps the shovels. We’ll have to order those from China.

  15. The Heretik says:

    The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki.

    Explaining why you have the authority to kill Awlaki would be as inconvenient. Capturing Awlaki rather than killing him would have been similarly inconvenient.

    Nobody in the office of the president or the Office of Legal Counsel wants to be inconvenienced. That Marty Lederman somehow came around to this way of thinking is most disheartening.

    It is sad that unlike milk, the AUMF doesn’t seem to have an expiration date. The longer it sits out, the more sour it gets.

    There will always be a lawyer with a knowledge of law who can make an argument and offer an opinion. Wisdom, however, is nowhere to be seen.

  16. rugger9 says:

    @Jeff Kaye:
    Only one possibility: under the Constitution, treason is defined quite narrowly, and requires two witnesses to the same overt act. That would include the American Taliban Lindh. Everything else is really covered under due process requirements, which seems to be what is being swept under the rug. As noted above, we now have the spectacle of bungee advisers [h/t to Dilbert’s bungee bosses] that appear, provide what is presented as legal cover [although dubious in its reasoning] and bolt to private life, and therefore theoretically inaccessible for Congress. It’s why Rove retired to spend more time with his family who apparently all work for Crossroads. It’s also a crock of horsefeathers. IF Congress wanted to they can look. The current makeup precludes investigations that aren’t politically driven, i.e. Issa witch hunts to ramp up next year, or CYA exercises. The GOP has made it an article of faith to refuse to prosecute GOP misdeeds, and the Senate will defend the WH as needed.

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