Why the Iraq AUMF Still Matters

The big headline that came out of yesterday’s American Bar Association National Security panels is that DOD General Counsel Jeh Johnson and CIA General Counsel Stephen Preston warned that US citizens could be targeted as military targets if the Executive Branch deemed them to be enemies.

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday.

[snip]

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

We knew that. Still, it’s useful to have the Constitutional Lawyer President’s top aides reconfirm that’s how they function.

But I want to point to a few other data points from yesterday’s panels (thanks to Daphne Eviatar for her great live-tweeting).

First, Johnson also said (in the context of discussions on cyberspace, I think),

Jeh Johnson: interrupting the enemy’s ability to communicate is a traditionally military activity.

Sure, it is not news that the government (or its British allies) have hacked terrorist “communications,” as when they replaced the AQAP propaganda website, “Insight,” with a cupcake recipe (never mind whether it’s effective to delay the publication of something like this for just one week).

But note what formula Johnson is using: they’ve justified blocking speech by calling it the communication of the enemy. And then apparently using Jack Goldsmith’s formulation, they have said the AUMF gives them war powers that trump existing domestic law, interrupting enemy communications is a traditional war power, and therefore the government can block the communications of anyone under one of our active AUMFs.

Johnson also scoffed at the distinction between the battlefield and the non-battlefield.

Jeh Johnson: the limits of “battlefield v. Non battlefield is a distinction that is growing stale.” But then, it’s not a global war. ?

Again, this kind of argument gets used in OLC opinions to authorize the government targeting “enemies” in our own country. On the question of “interrupting enemy communication,” for example, it would seem to rationalize shutting down US based servers.

Then, later in the day Marty Lederman (who of course has written OLC opinions broadly interpreting AUMF authorities based on the earlier Jack Goldsmith ones) acknowledged that Americans aren’t even allowed to know everyone the US considers an enemy.

Lederman: b/c of classification, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with.”

Now, as I’ve noted, one of the innovations with the Defense Authorization passed yesterday is a requirement that the Executive Branch actually brief Congress on who we’re at war with, which I take to suggest that Congress doesn’t yet necessarily know everyone who we’re in “armed conflict” with.

Which brings us to how Jack Goldsmith defined the “terrorists” whom the government could wiretap without a warrant.

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

It’s possible the definition of our enemy has expanded still further since the time Goldsmith wrote this in 2004. Note Mark Udall’s ominous invocation of “Any other statutory or constitutional authority for use of military force” that the Administration might use to authorize detaining someone. But we know that, at a minimum, the Executive Branch used the invocations of terrorists in the Iraq AUMF–which are much more generalized than the already vague definition of terrorist in the 9/11 AUMF–to say the President could use war powers against people he calls terrorists who have nothing to do with 9/11 or al Qaeda.

So consider what this legal house of cards is built on. Largely because the Bush Administration sent Ibn Sheikh al-Libi to our Egyptian allies to torture, it got to include terrorism language in an AUMF against a country that had no tie to terrorism. It then used that language on terrorism to justify ignoring domestic laws like FISA. Given Lederman’s language, we can assume the Administration is still using the Iraq AUMF in the same way Goldsmith did. And yet, in spite of the fact that the war is ending, we refuse to repeal the AUMF used to authorize this big power grab.

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4 Responses to Why the Iraq AUMF Still Matters

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Emptywheel Twitterverse
bmaz @MasaccioFDL Despite what clients and many outside forces always want to portray, it is truly almost never a sound idea.
16mreplyretweetfavorite
bmaz @TyreJim I was trying to be kind, i.e. without going the Belgian Ale reference.
21mreplyretweetfavorite
bmaz Seriously, living in a Mark Geragos world is maddening. You do NOT help your client by "keeping media abreast" or yakking at CNN. #JustStop
27mreplyretweetfavorite
bmaz @TeekeeMon Worked for 30-40 years; far more than it should have. That is not a good counter.
29mreplyretweetfavorite
bmaz Both the clients and otherwise decent crim defense attorneys are idiots. Silence, from the client AND attorney are ALWAYS the smartest play.
32mreplyretweetfavorite
bmaz Criminal clients THINK they need to "fight back" against the "media". Idiot criminal defense attys think they MUST fight back against media.
33mreplyretweetfavorite
bmaz .@LegallyErin Criminal lawyers earn my respect by shutting the fuck up, and staying shut the fuck up. Always. That's how you do it.
37mreplyretweetfavorite
bmaz @cody_k That is not "may have", that is "did". I knew that variation from MO law when the GJ started, and I am in AZ.
39mreplyretweetfavorite
bmaz @TyreJim Flat Tyre
44mreplyretweetfavorite
bmaz @LegallyErin These pricks HAD DONE SO AWESOMELY WELL by sitting the fuck up until now. Hubris overtook the fools. This just shoot me stupid
46mreplyretweetfavorite
bmaz @McBlondeLand @CNN ANY good lawyer would have told him to do so; however, that doesn't mean he gets pension or his job back.
48mreplyretweetfavorite
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