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The Answer, Robert Mueller, Is “Yes, DOJ Does Believe It Could Kill a Citizen in the US”

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FBI Director Robert Mueller tried to avoid answering whether or not we can target US citizens in the United States.

FBI Director Robert Mueller on Wednesday said he would have to go back and check with the Department of Justice whether Attorney General Eric Holder’s “three criteria” for the targeted killing of Americans also applied to Americans inside the U.S.

Pressed by House lawmakers about a recent speech in which Holder described the legal justification for assassination, Mueller, who was attending a hearing on his agency’s budget, did not say without qualification that the three criteria could not be applied inside the U.S.

“I have to go back. Uh, I’m not certain whether that was addressed or not,” Mueller said when asked by Rep. Kevin Yoder, R-Kan., about a distinction between domestic and foreign targeting

Yoder followed up asking whether “from a historical perspective,” the federal government has “the ability to kill a U.S. citizen on United States soil or just overseas.”

“I’m going to defer that to others in the Department of Justice,” Mueller replied.

When Fox asked DOJ for clarification, a spokesperson said the framework as laid out by Holder applied abroad, and she couldn’t imagine a scenario in which it would happen domestically.

But of course, everyone is simply dodging. DOJ knows well their legal logic, such as it is, would permit the due process free killing of an American in America. After all, Eric Holder claimed in his speech that Congress had not limited the geographic scope of the government’s authority to use force.

Our legal authority is not limited to the battlefields in Afghanistan.   Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.   We are at war with a stateless enemy, prone to shifting operations from country to country.

Jeh Johnson said the same in a recent speech, specifically in the context of domestic authorities.

Third: there is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot” battlefields of Afghanistan.  Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks – al Qaeda and the Taliban — without a geographic limitation.

And on Monday, when Holder objected to calling assassinations assassinations, he did not limit their claimed legality to overseas locales.

Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

But long before Johnson and Harris made these arguments it became clear that the legal analysis had to permit the targeting of American citizens within the US.

That’s because the legal case cited to get from capturing a US citizen (based on the precedent of Hamdi) to killing him is Scott v. Harris, an entirely domestic case.

It also cited several other Supreme Court precedents, like a 2007 case involving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

You can’t very well argue that, having determined a US citizen to be a lawful target under the AUMF and then claimed, as they did with Awlaki, that they had no way of capturing him safely, they couldn’t assassinate him in the US, too. If a police officer can use deadly force to stop a high speed car chase, then counterterrorism officials would not hesitate to use whatever means to kill a terrorist.

Our Detention Authority Branches Out beyond Al Qaeda

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It was pretty inconsiderate of Charlie Savage to break the news that the US had filed military commission charges against Ali Musa Daqduq the day after Jeh Johnson gave a speech emphasizing how our detention authority is restricted to those associated with al Qaeda.

But, the AUMF, the statutory authorization from 2001, is not open-ended.  It does not authorize military force against anyone the Executive labels a “terrorist.”  Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.

While Daqduq does, by all accounts, have ties to Hezbollah, there’s no allegation in the charges sheet that he had any ties to al Qaeda.

Now, I don’t dispute that Daqduq could be charged (or could have been, while we were still at war–oh wait, that Iraq AUMF will never be repealed!) for violating the laws of war. What I’m interested in is how the government implicated the various Shia groups with which Daqduq allegedly conspired.

Most of Daqduq’s charges–the murder, attempted murder, intentional bodily injury, and attempted kidnapping of some American soldiers–don’t mention any other people or organizations. Nor do the treachery and spying charges.

The charge of terrorism charges Daqduq alone–he’s a terrorist because he engaged in an act evincing wanton disregard for human life. Which is consistent with the way the Iraq AUMF defines terrorism, but not the way the GWOT one does.

The material support for terrorism charge does name others, though–the Shia group Asa’ib Ahl al-Haqq, which broke off from the Mahdi army in 2004:

In that Ali Musa Daqduq al-Musawi, an alien unprivileged enemy belligerent subject to trial by military commission, did, between about May 2006 and about January 2007, at various locations in Iraq and Iran, in the context of and associated with hostilities, provide material support and resources to be used in preparation for and in carrying out an act of terrorism against U.S. forces in Iraq, knowing or intending that such material support and resources were to be used for that purpose, to wit: advice, training and planning to Qays al-Khazali, Layth al-Khazali, and other members of Asa’ib Ahl al-Haqq, known and unknown, for the purpose of killing or inflicting great bodily harm upon one or more protected persons in or near Karbala, Iraq, on or about 20 January 2007.

Asa’ib Ahl al-Haqq is neither–and I don’t believe it was–on the State Department’s Foreign Terrorism Organization list nor sanctioned by Treasury. And last month it agreed to enter Iraq’s political process. Read more →

Jeh Johnson on the “Military’s Domestic Legal Authority”

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In addition to suggesting that the 16 year old American citizen Abdulrahman al-Awlaki was a legitimate military target, Jeh Johnson spoke yesterday about the “military’s domestic legal authority.” Now, rest assured, Johnson said the Administration does not rely on aggressive interpretations of such authority.

Against an unconventional enemy that observes no borders and does not play by the rules, we must guard against aggressive interpretations of our authorities that will discredit our efforts, provoke controversy and invite challenge.

He acknowledges that posse comitatus requires express authorization from Congress before extending the reach of the military onto US soil.

As I told the Heritage Foundation last October, over-reaching with military power can result in national security setbacks, not gains.  Particularly when we attempt to extend the reach of the military on to U.S. soil, the courts resist, consistent with our core values and our American heritage – reflected, no less, in places such as the Declaration of Independence, the Federalist Papers, the Third Amendment, and in the 1878 federal criminal statute, still on the books today, which prohibits willfully using the military as a posse comitatus unless expressly authorized by Congress or the Constitution. [my emphasis]

Then he proceeds directly from describing the express authorization required from Congress to a discussion of the AUMF–as the basis for the “military’s domestic legal authority.”

Second: in the conflict against al Qaeda and associated forces, the bedrock of the military’s domestic legal authority continues to be the Authorization for the Use of Military Force passed by the Congress one week after 9/11.[2]  “The AUMF,” as it is often called, is Congress’ authorization to the President 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.

Ten years later, the AUMF remains on the books, and it is still a viable authorization today. [my emphasis]

Then Johnson describes how the Administration–with no express authority from Congress until the NDAA–stretched an authorization limited to those people and groups with ties to 9/11 to include those “associated with” such groups. And, again with no express authorization from Congress, expanded it to include those who “engaged in hostilities” with coalition partners.

In the detention context, we in the Obama Administration have interpreted this authority to include:

those persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.[3]

This interpretation of our statutory authority has been adopted by the courts in the habeas cases brought by Guantanamo detainees,[4] and in 2011 Congress joined the Executive and Judicial branches of government in embracing this interpretation when it codified it almost word-for-word in Section 1021 of this year’s National Defense Authorization Act, 10 years after enactment of the original AUMF.[5]  (A point worth noting here: contrary to some reports, neither Section 1021 nor any other detainee-related provision in this year’s Defense Authorization Act creates or expands upon the authority for the military to detain a U.S. citizen.)

Johnson doesn’t mention, of course, that the government is using the same interpretation to extend the military’s domestic legal authority to non-detention areas. Those applications are secret, you see.

Note, in this passage, how Johnson gracefully re-specifies that he’s talking about the 2001 AUMF, and not the 2002 AUMF, which also remains in effect?

But, the AUMF, the statutory authorization from 2001, is not open-ended.  It does not authorize military force against anyone the Executive labels a “terrorist.”  Rather, it encompasses only those groups or people with a link to the terrorist attacks on 9/11, or associated forces.

That’s important because the government at least used to–and presumably still does (otherwise they wouldn’t have panicked when Congress considered repealing the AUMF authorizing a war that is supposed to be over)–rely on the Iraq AUMF to target “anyone the Executive labels a ‘terrorist.'”

Given that the Iraq AUMF has been used to go beyond the definitions in the 2001 AUMF, I’ll skip the paragraphs were Johnson talks about how narrow the government’s interpretation of “associated forces” is.

Particularly because this paragraph is my very favorite bit in this entirely disingenuous speech.

Third: there is nothing in the wording of the 2001 AUMF or its legislative history that restricts this statutory authority to the “hot” battlefields of Afghanistan.  Afghanistan was plainly the focus when the authorization was enacted in September 2001, but the AUMF authorized the use of necessary and appropriate force against the organizations and persons connected to the September 11th attacks – al Qaeda and the Taliban — without a geographic limitation.

Pretty comprehensive, huh, Jeh? Neither the wording of the AUMF or the legislative history limits the AUMF, right?

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Shorter Jeh Johnson: 16-Year Old Abdulrahman Al-Awlaki Legitimate Military Target

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I’ll have more to say about this speech Jeh Johnson gave at Yale later. But for the moment I wanted to unpack the logic of his comments about targeted killing.

As part of his claim that drone strikes are just like past military killing, Johnson boasted of the precision of our current weapons.

I want to spend a moment on what some people refer to as “targeted killing.”  Here I will largely repeat Harold’s much-quoted address to the American Society of International Law in March 2010.  In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice.  What is new is that, with advances in technology, we are able to target military objectives with much more precision, to the point where we can identify, target and strike a single military objective from great distances.

Should the legal assessment of targeting a single identifiable military objective be any different in 2012 than it was in 1943, when the U.S. Navy targeted and shot down over the Pacific the aircraft flying Admiral Yamamoto, the commander of the Japanese navy during World War Two, with the specific intent of killing him?  Should we take a dimmer view of the legality of lethal force directed against individual members of the enemy, because modern technology makes our weapons more precise?  As Harold stated two years ago, the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the law of war on the use of technologically advanced weapons systems in armed conflict, so long as they are employed in conformity with the law of war.  Advanced technology can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

He then goes on to argue that our targeted killing is not assassination because the targets are all legitimate military targets.

On occasion, I read or hear a commentator loosely refer to lethal force against a valid military objective with the pejorative term “assassination.”  Like any American shaped by national events in 1963 and 1968, the term is to me one of the most repugnant in our vocabulary, and it should be rejected in this context.  Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an “assassination.”

Well then. If our weapons have that much precision–if the intelligence that goes into such strikes is so good we can strike individuals with precision–and we only hit military targets, it must follow that we knew 16-year old American citizen Abdulrahman al-Awlaki was present when we killed him with a drone strike. And we must have considered the teenager a legitimate military target.

Because of course the United States would never assassinate its teenagers, would it?

The Albatross of Obama’s “Rule of Executive Order”

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The other day, John Bellinger and Matthew Waxman joined the long list of people voicing opposition to the detention provisions of the Defense Authorization. Yet there’s a part of their column that has received little focus, in spite of the fact it’s one of the things Bellinger emphasized when he linked to their column at Lawfare.

Bellinger and Waxman scold President Obama for not following through on his promise to develop laws covering terrorism detainees.

President Obama should have followed through on his pledge in his May 2009 National Archives Speech to work with Congress to develop an appropriate legal regime for detention of terror suspects who cannot be prosecuted or released, and Congress should have been more responsive to the concerns of counterterrorism officials in the Executive branch.

The substance of that promise–given at a time, remember, when Democrats had the majority in the House and 59 (soon to be 60) Senators in the Senate–was:

Now let me be clear:  We are indeed at war with al Qaeda and its affiliates.  We do need to update our institutions to deal with this threat.  But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.

[snip]

There are no neat or easy answers here.  I wish there were.  But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo.  As President, I refuse to allow this problem to fester.  I refuse to pass it on to somebody else.  It is my responsibility to solve the problem.  Our security interests will not permit us to delay.  Our courts won’t allow it.  And neither should our conscience.

[snip]

Having said that, we must recognize that these detention policies cannot be unbounded.  They can’t be based simply on what I or the executive branch decide alone.

[snip]

I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred.  Our goal is not to avoid a legitimate legal framework.  In our constitutional system, prolonged detention should not be the decision of any one man.  If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.  And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

[snip]

We seek the strongest and most sustainable legal framework for addressing these issues in the long term — not to serve immediate politics, but to do what’s right over the long term.  By doing that we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next President and the President after that — a legacy that protects the American people and enjoys a broad legitimacy at home and abroad. [my emphasis]

Obama made that promise in a speech that spoke grandly about the importance of using our fundamental values–our laws–to beat tyranny.

I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values.  The documents that we hold in this very hall — the Declaration of Independence, the Constitution, the Bill of Rights — these are not simply words written into aging parchment.  They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality, and dignity around the world.

Read more →

Why the Iraq AUMF Still Matters

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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.

Administration Has Means to Sustain Civilian Primacy without Veto

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As we all wait to see whether Obama will follow through on his veto threat tied to the detainee provisions in the Defense Authorization, I want to make an observation.

The Obama Administration has the means–short of a veto–to sustain civilian law primacy even if this bill is passed. But they will not use it.

As Lindsey Graham and Carl Levin repeat over and over when defending the detainee provisions–the detainee provisions require the Executive Branch to come up with procedures to determine whether someone qualifies as a covered person.

Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

With (a)(2) being whether or not the detainee was a Covered Person:

The requirement [for military detention] shall apply to any person whose detention is authorized under 1031 who is determined–

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

Nothing in the bill allows Congress to override the procedures developed by the Administration; it only requires that Congress get a copy of them.

Which would seem to permit the Administration to issue the following procedures:

  1. The persons authorized to make determinations whether or not someone is a “Covered Person” are Article III jurors and/or jurists.
  2. The process by which it will be determined whether or not someone is a “Covered Person” will be a civilian trial.

That would seem to render the effect of the most noxious part of the detainee provisions minimal: rather than imprisoning convicted terrorists at Florence SuperMax, those terrorists will be detained at Leavenworth. But they won’t be transferred to military custody until after they get a civilian trial.

They won’t do this, mind you, not just because it would make the Republicans go apeshit and would tie their hands. But they like the power that comes from the ability to make up this shit as they go along, and would never put in writing that courts must be involved. (Indeed, today Jeh Johnson repeated the Administration’s prior assertion that courts are not authorized to review the Administration’s targeting decisions.

But it would be a way to dispense with this crappy bill.

State Department, DoD Argue Over “Rules” for Drone Targets Outside Pakistan

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Fire away!

Predator drone firing Hellfire missile. (Wikimedia Commons)

Ed: Now that he’s on the mend from heart surgery, Jim is going to do some posting at EW. Welcome, Jim!

Charlie Savage notes in today’s New York Times that the Departments of State and Defense are engaged in an argument over the choosing of targets for drone attacks outside Pakistan. The primary point of contention centers on whether only high level al Qaeda figures in places like Yemen and Somalia can be targeted or if even low level operatives in these areas can be targeted there, just as they are in Pakistan.

Arguing for a more constrained approach is Harold Koh at the State Department:

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.

A more wide open approach is favored by Jeh Johnson at the Pentagon:

The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

Sensing an opportunity to add to his “tough on terrorism” credentials, Senator Lindsey Graham (R-SC) can’t help but join in the DoD’s line of argument: Read more →

Obama War Powers Treachery and The Founders’ Remedies

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Signing-constitutionAs most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized Read more →

Going Astray – Obama and Nato Bombings in Libya

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EW and probably bmaz as well will likely have more to say on this one when they free up.

Charlie Savage reported on Friday that Obama rejected advice from both Jeh Johnson (Pentagon general counsel) and, even more significantly, Caroline Krass (the acting head of DOJ’s Office of Legal Counsel) when he availed to himself the power to continue bombings and killings in Libya, under the assertion that he’s, well, he’s just not being all that hostile in his bombing campaign.

Like Nixon in Cambodia, Obama did find supporters for his decisions about Libya. Ex-Yale Dean, current assassination proponent, Harold Koh (legal advisor for the State Department) apparently assured Obama that the bombings just do not rise to the level of being “hostilities” for which Obama needs Congressional permission. Robert Bauer, Obama’s White House counsel, reportedly provided his own version “yeah buddy” for Obama.

Just as Bush found it convenient to get his White House Counsel, Alberto Gonzales, to opine that as long as Bush designated his torture victims as being “illegal enemy combatants” (whatever the ultimate facts) he was exempt from war crimes prosecutions, Obama’s White House counsel is equally eager to tell Obama that, as long as he doesn’t call them “hostilities,” Obama can bomb any nation for any period of time.   

Most importantly – all of this is being done in derogation of the Office of Legal Counsel opinion that the President has exceeded his authority.   At issue, according to White House Spokesman Eric Shultz (Dan Pfeiffer was tied up) isn’t the very same, age old, typical power grab of any unchecked sovereign, but instead the age of the War Powers resoluton.

“It should come as no surprise that there would be some disagreements, even within an administration, regarding the application of a statute that is nearly 40 years old to a unique and evolving conflict,” Mr. Schultz said. “Those disagreements are ordinary and healthy.”

The Obama theory is that with 10 years of Bush-Obama battering of the psyches and vocabularies of of Americans and with some very dedicated government propaganda processes to boot, the meaning of the term “hostilities” has changed to exclude American or American led NATO bombings.  And this is “ordinary and healthy.”

Apparently the words “ordinary” and “healthy” have changed some over the last 40 years as well. For those civilian residents in Tripoli who were killed or maimed by NATO’s bombing run today, there is no translation dictionary or program current enough to convert their descriptions of the outcome of the NATO bombing into the words “ordinary” and “healthy.”  NATO provided an assist though – what happened wasn’t a bombing of civilians, but rather a strike on an unintended target. 

“[I]t appears that one weapon did not strike the intended target and that there may have been a weapons system failure which may have caused a number of civilian casualties.”

Cue up Obama’s spox to explain to us how words like “civilian casualties” have also changed a lot over the last few decades – in an ordinary and healthy way.  Maybe they’ll even bring on Henry Kissinger to help with the explanation.   

I don’t completely buy Glenn Greenwald’s take that Bush had “better” lawyers, because [now starts my paraphrase of Glenn’s point] some were prepared to threaten to quit over the NSA program (which they demanded be revised into an equally unconstitutional format) and others were prepared to blindly follow the lead without even knowing anything about why they’d be resigning, still, I will say that Bauer and Koh can easily fill the shoes of Gonzales and Bellinger.

Bush and “torture.” Obama and “hostilities.”  The one thing that we can rely upon is that the meaning of the phrase “Executive Power” has changed over the years. Unchecked, it will continue to change at an ever-increasing rate.  And for those of us who remember Obama’s “stern face” as he promised during primaries and camaigns to “restore the rule of law” we can only wonder when that phrase went so far astray as to encompass the things the Obama administration has done over the last few years.