The AUMF Fallacy

There’s a whole strand of commentary on the targeted killing that lets the Obama Administration off easy for what it maintained in the white paper on the targeted killing of Americans.

There’s the argument made by David Cole and Jane Mayer that Obama’s targeted killing isn’t as bad as Bush’s torture because torture is always illegal, whereas killing is legal during war. This is Cole:

Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.

There’s Armando Llorens’ argument that because the AUMF didn’t expressly authorize the military to operate in the US, the President therefore couldn’t target Americans in the US.

Serwer writes:

The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as “express authorization” to carry out a targeted killing on US soil.

Well, let’s read the empowering provisions:

Section 2 – Authorization For Use of United States Armed Forces(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 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.

The argument that Serwer appears to adopt is that this empower the president to “use all necessary and appropriate force against those […] organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 […]in order to prevent any future acts of international terrorism against the United States” including such persons and organizations located in the United States.

The problem is  the 2001 AUMF does not include the language “in the United Sates.” To wit, the Posse Comitatus Act’s requirement of “express authorization” is not met. There is no express authorization for military targetting in the United States.

And there’s Garrett Epps’ in some ways strong argument that a Drone and/or Targeted Killing Court wouldn’t work that nevertheless problematically includes the claim that Obama has claimed no inherent authority in his use of drone strikes.

The present administration does not claim that the president has “inherent authority” to attack anyone anywhere. Instead, from the documents and speeches we’ve seen, the administration says it can order drone attacks only as provided by the Authorization for the Use of Military Force passed by Congress after the September 11 attacks—that is, against “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 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.”

Unlike the fictional President Bennett in Tom Clancy’s Clear and Present Danger, then, President Obama can’t suddenly send the drone fleet down to take out, say, Colombian drug lords or the Lord’s Resistance Army in Uganda. [my emphasis]

All of them claim the Administration is operating exclusively within the AUMF, and based on that assumption conclude certain things about what the Administration has done.

There is abundant evidence to refute that. After all, the Administration invokes self-defense about as many times as it does AUMF in the white paper. The white paper actually situates the authority to kill an American in “constitutional responsibility to protect the country” — that is, Article II authority — and inherent right to self-defense even before it lists the AUMF.

The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.

(Interestingly, the Holder speech reverses that order, listing AUMF, law of war, Article II, and then self-defense under international law.)

One of the Senators who has actually been briefed on Anwar al-Awlaki’s killing kept asking, for an entire year, “is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?” While Wyden didn’t repeat that question in open session at Brennan’s hearing (so it may have been answered in the OLC memos he got the morning of the hearing), if he didn’t know, then how can all these people who haven’t been briefed claim to know?

Similarly, Colleen McMahon — who has been briefed at least on why CIA needed to invoke No Number No List over their own public speech — emphasized the unilateral nature of the decision to kill Awlaki.

And ultimately, we should look to what Stephen Preston — the General Counsel of the agency that actually carried out the Awlaki killing — has to say about where the CIA gets its authorization to engage in lethal covert operations.

Let’s start with the first box: Authority to Act under U.S. Law.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law.

In addition, we would make sure that the contemplated activity is authorized by the President in accordance with the covert action procedures of the National Security Act of 1947, such that Congress is properly notified by means of a Presidential Finding. [my emphasis]

The CIA, the agency that killed Awlaki, looks to Article II authority before it engages in targeted killing. Congressional authorization might also provide authority, 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.

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.

15 replies
  1. scribe says:

    You note:

    “Finally, this notion that the President doesn’t think he could shoot drones against the Colombian drug lords or the LRA?”

    Recall that the Esquire article glorifying the Seal who shot binLaden noted that places the SEALs are looking at for their next action, post-Afghanistan, included Mexico. As in whacking drug lords or whomever else might be inconvenient.

  2. orionATL says:

    you’re drawing quite a map, ew. sure you don’t want to move out of the 100-miles-from-canada zone for the time being?

    if only the right-wing would get invested in the story, then there would be political movement.

    in my view, the article II “authorizations” are really even more tenuous than the aumf. of course, the lawyers and the courts don’t see it that way.

    article II authorizations, even though based on more than 150 yrs of legal precedents (the mexican war, the civil war (lincoln’s suspension of habeas), wwII (roosevelt’s imprisonment of japanese-americans) up to our modern war on terrorism and the use of a secret paramilitary force to assassinate an american citizen exercising his rights of speech), are really based on highly imaginative enlargements of presidential power derived from a few abstract words and phrases that intended or imagined nothing of the sort as claimed by subsequent presidents, lawyers, and judges.

    just as interesting to me, i doubt any of the most famous presidential actions that had to be covered up and papered over with fantastical extrapolations from those few article II words and phrases, e.g., “protect and defend the constitution…” that one truly is ironic, were essential to the outcome of the war in which they were employed. not the suspension of habeas, not the internment, not the assassinations. none of these was critical to the outcome or to “national security”. they were political decisions at least as much as “national security” decisions.

    so it is with the al-awlaki, et all executions. al-a, i believe, was killed because he had a ministerial connection with the nidal hassan carnage, including supporting hassan’s anger at the u.s. . (i wonder how the gov’t has dealt with the fact that hassaan would have known al-a because the later preached as hassan’s father’s funeral in 2001?)

  3. Barry Eisler says:

    I’ve seen the “killing is sometimes legal, but torture is always illegal” argument before, and it’s always struck me as worse than sophistry — it’s silly, too. One could as easily (and more helpfully) say, “killing is sometimes legal, interrogation is sometimes legal…”

    Thanks for another great piece, Marcy. Not sure why people are so eager to get Obama off the Article II hook on this. I guess because doing so bolsters the idea that he’s a nice guy and would never go too far with this assassination — sorry, targeted killing — stuff.

  4. Susan Platt says:

    But hasn’t the CIA always been involved in targetted murder. The US citizen murder is new, but how new? Has it never happened before?
    What about all the wars, all the journalists who have died.

  5. Bitter Angry Drunk says:

    It’s really disappointing to see Jane Mayer engage in such weak excuse-making on behalf of King Barack. Torture is beyond the boundaries of decent war-making, but using killer robots to incinerate distant brown people at funerals is acceptable because we’re still at war with, well, whoever…

  6. Good enuf for govt work says:

    To claim its vaunted right to self-defense under international law, the US government must show that the fist-shaking peasants they bugsplat qualify as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter and as understood in customary law on the use of force. The USG must also show that its actions were necessary and proportional to the armed attack made on it, and that the weddings and funerals and playgrounds it bombs are legitimate military targets open to attack in the exercise of self-defence.

    The CIA shysters love to quote “inherent” but you never see them quote the rest of Article 51: “Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

    That is, the US places its drones at the disposal of the Security Council, which plans for, regulates, and employs them at its discretion per Chapter VII. Anything else is aggression, the highest crime.

    It’s easy to get around the toilet-paper constitution. International law is harder to twist in the era of international criminal law and internationally wrongful acts. The US legal sandbox fixates on the constitution to hide from their individual legal exposure and national liability. Pakistan is making its case, which won’t be argued in a servile US court subject to CIA bugging, censorship, and blackmail, and secret decrees. US government lawyers have no experience with real, independent judiciaries. They are going to be disgraced.

  7. peasantparty says:

    @Good enuf for govt work: My sentiments EXACTLY! There is no way other soverign nations have adopted these two meaningless reasons for drone attack on their land/people.

    If another country sent a drone here to attack something it would mean all out war on that specific nation. This is all a bunch of paper shuffles to cover up more war crimes and to look forward, not back at the Bush/Cheney/Rumsfeld,Wolfowitz, Kissenger crimes.

  8. peasantparty says:

    EW,

    Do you see anything, anywhere in those documents where it clearly states we can do this globally? (specific)

    We know the UK, Isreal, and now Saudi Arabi does. I’m just trying to figure out how many of the other 160 nations on this globe support this kind of killing.

  9. Tom Allen says:

    @Susan Platt: The CIA (and other government agencies) haven’t, so far as I know, claimed that the murder, bribery, eavesdropping and other mayhem they’ve (presumably) engaged in are legal or sanctioned by the US Government. They don’t brag about it on the front pages of the NY Times.

    Under Bush, and now Obama, what was once illegal, covert, and subject to prosecution has become the opposite. It’s done with impunity and run out of the White House. Dick Nixon must be looking up from Hell with envy.

  10. emptywheel says:

    @scribe: Yes. There have been not totally crazy claims we’ve got a drone on call in case we need it for Chapo Guzman.

    Cause he’s an imminent threat to the US.

  11. Kathleen says:

    Marcy have you read these pieces by CIA’s former chief of the Bin Laden unit Micheal Scheuer?
    John Brennan and the Senate: Is anyone in Washington willing to defend America?
    By mike | Published: February 10, 2013
    http://non-intervention.com/

    John Brennan as CIA chief would serve his own interests, not America’s
    By mike | Published: February 6, 2013

    France’s recent interventions in Mali and Somalia underscore the accelerating ability of Al-Qaeda-in-the-Islamic-Mahgreb (AQIM) and its Africa-based allies to threaten the continent’s nation-states, as well as access to natural resources—oil, strategic minerals, and uranium—that are essential to the French, U.S., and other Western economies. The growing power and geographical reach of AQIM mirrors the growth of all components of Al-Qaeda and other Islamist groups, save possibly the central component in Afghanistan-Pakistan. The bottom line here is that sixteen years after Al-Qaeda and its allies began their religious war, the United States and the West confront an Islamist enemy that is larger, better armed, smarter, and far more geographically dispersed than ever before.

  12. Jeff Kaye says:

    Thanks so much for taking on the thankless task of responding to the apostasies of David Cole and Jane Mayer. They are truly examples of the flaws of liberalism in a capitalist “democracy”, where party spirit equates to cliquism because, one, the party does not act in the name of the people, and two, the party’s interests are put above those of the law or the national interest, in the sense of the interests of the people, which can be the only true national interest.

    Nothing has changed my opinion from the very first day this white paper surfaced. The legal doctrines of John Yoo, whether enumerated by him or not, have ascendancy in the Executive Branch. An entire generation, who looked to Obama for “hope” and change, have been suborned to the interests of the imperialist rulers, who enrich themselves with the theft of superprofits, raw materials, and capital, and ready their population for the next big war.

  13. Dan says:

    We can parse the differences between Obama’s and Bush’s execution of the GWOT all day. What it comes down to is Obama’s failure to prosecute the war criminals of the Bush Administration makes Obama a…. war criminal.

    Once this fact is accepted, Obama no longer has any moral authority to proclaim the legality of his actions.

  14. What Constitution? says:

    @Jeff Kaye: Great word, “apostasies”. I looked it up to be sure, and Webster’s says: “Apostasy (n.) A total desertion or departure from one’s faith, principles, or party.”

    What’s going on here is about the United States Constitution.

  15. Kathleen says:

    @Dan: Hey Dan did you miss it? From Obama and team…. Forward Forward Forward…what massive pile of dead Iraqi and Americans soldiers bodies? All dead based on a “pack of lies”

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