2001 AUMF

Breaking: Four Senators Rediscover Congress Has Oversight Role for Committing Troops

Don’t look for this important bit of news in the New York Times or Washington Post. At least at the time I started writing this, they hadn’t noticed that Senators Jeff Merkley, (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) put out a press release yesterday calling for a Congressional vote on whether to authorize keeping US troops in Afghanistan beyond 2014. President Barack Obama and the Pentagon have been bargaining with Afghan President Hamid Karzai for over a year now to get a Bilateral Security Agreement that will authorize keeping US troops there after the current NATO mission officially ends at the end of this year, but we have heard almost nothing at all from Congress. Well, we did have some hypocrisy tourists calling for Karzai to sign the agreement immediately or suffer the financial consequences, but they didn’t call for using their Constitutional role in authorizing use of troops.

This bipartisan group had some pretty strong language about the push to exclude Congress from the decision-making on keeping troops in Afghanistan:

Today, Senators Jeff Merkley (D-OR), Mike Lee (R-UT), Joe Manchin (D-WV), and Rand Paul (R-KY) announced the introduction of a bipartisan resolution calling for Congress to have a role in approving any further United States military involvement in Afghanistan after the current mission ends on December 31, 2014. The Administration is reportedly negotiating an agreement that could keep 10,000 American troops or more in Afghanistan for another ten years.

“The American people should weigh in and Congress should vote before we decide to commit massive resources and thousands of troops to another decade in Afghanistan,” Merkley said. “After over 12 years of war, the public deserves a say. Congress owes it to the men and women in uniform to engage in vigorous oversight on decisions of war and peace.”

“After over a decade of war, Congress, and more importantly the American people, must be afforded a voice in this debate,” Lee said. “The decision to continue to sacrifice our blood and treasure in this conflict should not be made by the White House and Pentagon alone.

“After 13 years, more than 2,300 American lives lost and more than $600 billion, it is time to bring our brave warriors home to the hero’s welcome they deserve and begin rebuilding America, not Afghanistan,” Manchin said. “We do not have an ally in President Karzai and his corrupt regime. His statements and actions have proven that again and again. Most West Virginians believe like I do money or military might won’t make a difference in Afghanistan. It’s time to bring our troops home.”

“The power to declare war resides in the hands of Congress,” Paul said. “If this President  or any future President has the desire to continue to deploy U.S. troops to this region, it should be done so only with the support of Congress and the citizens of the United States.”

After 12 years and hundreds of billions of dollars spent, the Administration has declared that the war in Afghanistan will be wound down by December 31, 2014. However, the Administration is also negotiating an agreement with the Government of Afghanistan that would set guidelines for U.S. troops to remain in training, support, and counter-terrorism roles through at least 2024.

In November, the Senators introduced this bill as an amendment to the Defense Authorization bill, but it wasn’t allowed a vote. In June, the House of Representatives approved a similar amendment to the NDAA stating that it is the Sense of Congress that if the President determines that it is necessary to maintain U.S. troops in Afghanistan after 2014, any such presence and missions should be authorized by Congress.  The House amendment passed by a robust, bipartisan 305-121 margin.

But Merkley added yet another zinger. From the AFP story on the move, as carried in Dawn (emphasis added):

“We are introducing a bipartisan resolution to say before any American soldier, sailor, airman or Marine is committed to stay in Afghanistan after 2014, Congress should vote,” Democratic Senator Jeff Merkley told reporters.

Automatic renewal is fine for Netflix and gym memberships, but it isn’t the right approach when it comes to war.

Wow. What a concept. Continue reading

Time to End the Iraq War

In his speech on Thursday, President Obama said,

America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”

Talking about the way the choices we make about war affect the freedom on which our way of life depends, Obama called for tweaking and, ultimately, repealing the September 18, 2001 Authorization to Use Military Force.

I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. [my emphasis]

And yet … he said nothing about the 2002 Iraq War AUMF, the one he ran for President against in 2008.

Last we heard, remember, Rand Paul tried to repeal the Iraq AUMF just as the last US forces were being withdrawn in November 2011. That effort was voted down definitively, 67-30. 18 months later, that AUMF is still on the books.

A great speaker recently said said that “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” I’m all in favor of repealing the 2001 AUMF. But why not practice repealing AUMFs first, by formally ending the Iraq War that should never have been started?

 

Yes, the Government Does Believe the Military Can Use Military Force in the US

I made an error.

In this post, I suggested that debates about whether the 2001 Authorization to Use Military Force constituted an exception to the Posse Comitatus Act ignore that for 7 years — from the time John Yoo wrote a memo on whether the Fourth Amendment inhibited military deployment in the US  in 2001 until the time Steven Bradbury “withdrew” the memo in 2008 — the official position of the Executive Branch was that PCA had been suspended under the AUMF.

Armando Llorens and Adam Serwer have debated — specifically in the context of whether the President could kill Americans within the US – whether PCA applies in this war. And while they’re staging an interesting argument (I think both are engaging the AUMF fallacy and therefore not discussing how a President would most likely kill Americans in the US), what the Yoo memo shows, at the least, is that the folks running the Executive Branch believed, for 7 years, the PCA did not apply.

To be clear, this memo was withdrawn in October 2008 (though not without some pressure from Congress). While the PCA aspect of the opinion is one of the less controversial aspects in the memo, as far as we know it has not been replaced by similar language in another memo. So while this shows that PCA was, for all intents and purposes, suspended for 7 years (as witnessed by NSA’s wiretapping of Americans), it doesn’t mean PCA remains suspended.

My error was in suggesting Bradbury “withdrew” the memo.

He did not.

Instead, Bradbury directed that “caution should be exercised” before relying on it.

The purpose of this memorandum is to advise that caution should be exercised before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) (“10/23/01 Memorandum”) as a precedent of the Office of Legal Counsel, and that certain propositions stated in the 10/23/01 Memorandum, as described below, should not be treated as authoritative for any purpose.

As noted, he said that five propositions in the Yoo memo should not be treated as authoritative for any purpose.

We also judge it necessary to point out that the 10/23/01 Memorandum states several specific propositions that are either incorrect or highly questionable. The memorandum’s treatment of the following propositions is not satisfactory and should not be treated as authoritative for any purpose:

But then, in a series of bullet points laying out the problems with those five propositions, Bradbury doesn’t always dismiss the outcomes Yoo’s analysis supported, but in several cases accepts the outcomes but simply provides a different basis for supporting them. Continue reading

Emptywheel Twitterverse
bmaz @armandodkos You know I love you right?
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bmaz @armandodkos Heh, Yes, I, of all people, am Mr. Beltway. Good one!
4mreplyretweetfavorite
bmaz @armandodkos Attacking and scolding people that agree with you seems a poor use of time.
10mreplyretweetfavorite
bmaz @armandodkos I dunno, I think fact I agree w/King decision+think it should prevail does that sufficiently. Just not belligerent enough for U
10mreplyretweetfavorite
emptywheel Wonder if a futile suit against the President will lead Congress to do something about expansive immunity claims? Prolly not.
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emptywheel @granick If they get handset ID because you're sitting next to me, is that CDR? Not traditionally, no. But it is included in permitted IDs.
43mreplyretweetfavorite
emptywheel @granick We know they intend to use track burners. So if they're doing that analysis why would we believe they're not using location?
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emptywheel @granick Not at all. They have to return to a CDR at each step. Says nothing about what they do to get there.
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emptywheel @LemonSlayerUS I'm talking NGOs, not members of Congress.
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emptywheel Fairly certain we've known for over 5 years Powell was not briefed on torture until September 16, 2002.
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emptywheel Maybe I'm wrong and NSA doesn't intend to do contact chaining on location. But wouldn't it be smart to get something in writing first?
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emptywheel Bunch of privacy NGOs just supported legislation w/o first getting promised assurances for ODNI it doesn't put NSA in our smartphones.
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July 2014
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