Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:
“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”
Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:
The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.
The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.
The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.
The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:
But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.
As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: →']);" class="more-link">Continue reading
Back in June, I wrote about the deceit employed by the Pentagon in going against the advice of SIGAR (pdf) and explicit language in the NDAA to purchase Russian Mi-17 helicopters through the arms dealer Rosoboronexport. Because Rosoboronexport has been supplying weapons to the Assad regime in Syria, the helicopter purchase took on additional levels of outrage. It appears that the Pentagon did get about half of the helicopters it wanted by claiming to use leftover 2012 funds (use of 2013 funds for the helicopters was banned in the NDAA), but they have now cancelled plans to use 2014 funds for the remaining helicopters that had been planned.
Reuters reported in August that the Defense Criminal Investigative Service had opened a criminal probe into the Huntsville, Alabama, Army aviation unit that oversees the Mi-17 program, and ties between the unit’s former chief and two foreign subcontractors.
Texas Senator John Cornyn did a bit of a victory dance over the cancellation. As described in the AP story:
Bipartisan opposition to the Mi-17 acquisition grew as the violence in Syria escalated and U.S. relations with Russia deteriorated. A growing number of lawmakers from both political parties objected to acquiring military gear from Rosoboronexport, which has provided Assad’s regime with weapons used against Syrian civilians.
“I applaud the Defense Department’s decision to cancel its plan to buy 15 additional Mi-17 helicopters from Rosoboronexport,” Sen. John Cornyn, R-Texas, said in an emailed statement. “Doing business with the supplier of these helicopters has been a morally bankrupt policy, and as a nation, we should no longer be subsidizing Assad’s war crimes in Syria.”
But this victory by opponents of the sale comes after a large victory by the Pentagon in the earlier battles:
Rosoboronexport announced Monday that 12 of the Mi-17s had been delivered to Afghanistan in the month of October. The shipments, the export agency said, reflected the joint effort between Russia and the U.S. to combat international terrorism.
The AP story spends a bit of time on how Mi-17′s were chosen: →']);" class="more-link">Continue reading
The Special Inspector General for Afghanistan Reconstruction, (SIGAR) issued a report (pdf) yesterday that serves as microcosm of the bumbling ineptitude and denial of reality that has characterized the entire US military’s misadventure in Afghanistan. Subtexts running through this scandal run the gamut from US think tanks cooking up unworkable plans to the vast network of international arms dealing (replete with counterfeit parts), Russia supplying arms to Syria, possible blow-back from the arrest of Viktor Bout, the US Congress remarkably trying to exert a bit of power and finally DoD declaring that they will continue with their schedule for claiming Afghanistan can provide its own defense operations despite overwhelming evidence to the contrary.
At issue here primarily is a contract for 30 Russian Mi-17 helicopters. Despite the fact that the US has been at war in Afghanistan continuously for almost twelve years now, and despite the spectacular failure of US helicopters under haboob (dust storm) conditions in the failed April, 1980 Iran hostage rescue attempt, it appears that Russian helicopters are more reliable in desert conditions and easier to maintain in flying order with a less sophisticated ground crew than US helicopters
The route by which we got to this contract is remarkable. The helicopters are to be supplied to the Special Mission Wing, which is the air support group for Afghanistan’s Special Operations forces. But how this group came into existence is very important to the current scandal. From the report (footnotes removed in this and all subsequent quotes):
At a December 2011 Special Operations Summit, ISAF senior leadership identified the development of air support capacity as a priority for improving Afghan military capabilities for counterterrorism and other special operations missions. To respond to this need, NTM-A [NATO Training Mission - Afghanistan] sponsored a RAND study to assess requirements and provide recommendations. The study’s recommendations discussed different scenarios for the planned size—in terms of both personnel and aircraft—of air support, the command structure, and scope of operations.
NTM-A determined that the Afghan Ministry of Interior’s (MOI) existing Air Interdiction Unit, a counternarcotics-focused unit, would provide the best foundation to develop an Afghan counterterrorism and special operations aviation capability, while maintaining critical counternarcotics efforts. On May 12, 2012, NTM-A issued a military order identifying its concept for the establishment of the SMW. On July 18, 2012, the ANA commissioned the SMW, which replaced the Air Interdiction Unit.
That’s all fine and dandy, except that the geniuses at RAND didn’t allow for the fact that they created a destructive turf war inside the Afghan government. The new SMW is to be housed within Afghanistan’s Ministry of Defense (MOD) since that is where Afghan Special Operations resides. The turf war over moving the existing unit has not yet been resolved: →']);" class="more-link">Continue reading
I’ll probably have a few posts on Harold Koh’s speech opposing what he calls the “Forever War” at the Oxford Union. For now, I want to look at his argument against a new Authorization to Use Military Force.
I strongly disagree with those who claim that new legislation is now necessary to authorize the Administration to fight against new enemies. The burden of proving that such legislation would be either necessary or wise should fall on the proponents. As a lifelong international and constitutional lawyer who has worked on these legal issues for a decade, I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat. Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration. Nor would adopting new domestic legislation make actions in preemptive self-defense lawful under international law. And unless we can clearly define just who the new enemies are–and why existing legal authorities are insufficient to defend ourselves against them–we have no basis for passing new laws that would perpetuate the Forever War against shadowy foes whose association with those who have attacked us on 9/11 cannot be proven.
It’s hard to tell where the boundaries between good faith and deception lie here. After all, in several places in the speech — including this passage purportedly distinguishing what Obama has done from what Bush did — Koh’s language admits the possibility that Congressional sanction for military force is not the only authority Obama is working with (though he does admit that Congressional authority is one source of authority).
First, the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s s vague constitutional powers.
And so when he says things like “I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat,” it seems likely he’s preserving the ability to rely on Article II authority for something called an “imminent threat.” The same is true when he invokes “existing legal authorities” when he talks about fighting people who are clearly not Al Qaeda.
In other words, even while he seems to be opposed to treating our newer enemies as war opponents, he also seems to be reserving the right to rely on Article II authority to go after them. Which is not necessarily a better proposition for those who truly value other tools rather than killing.
That’s why I’m struck by this sentence.
Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration.
What Koh seems to be worried about is shifting the balance of the Youngstown test — whether Presidential power is expansive or limited — of the AUMF itself (Koh pretends authorizing military force is the same thing as declaring war, but in any case, last I checked, the authority to declare war belonged to Article I).
That’s true, first of all, because the way the existing AUMF was written — which allows the President to determine the enemy and has been interpreted consistently but wrongly as authorizing war powers here in the US. A new AUMF might (though probably wouldn’t) explicitly clarify the limits to war powers in the US or at least with US citizens.
But as even the 2012 NDAA showed, it can work the other way, with Congress requiring that Obama default to military detention and commissions with any new terrorist suspects. Mind you, Obama took the limits on what he could do in Gitmo far, far more seriously than he did the requirement that DOD give every one of its detainees a meaningful review, so he’s already picking and choosing what legislative requirements he fulfills. But in theory at least, Congress can mandate the President treat certain targets as enemies of war, rather than criminals.
But that, it seems to me, is ultimately what this debate about a new AUMF comes down to. Koh and, presumably, others who have served the President won’t want Congress to change the delicate balance that offers the President a great deal of flexibility to operate under both the AUMF and Article II. And to some degree, they’re right to worry about what batshit stuff the Lindsey Grahams of the world will mandate. But I suspect they’re just as worried that a new AUMF will put real limits to the President’s current fairly unlimited authority.
Look, I don’t trust Congress to write a new AUMF either. If they do one, it’s going to contain all manner of batshittery.
But bizarrely, in our crazy world, passing a new one might actually be a more effective way to limit what the President can and can’t do as anything else that has been tried. If we want to force the Executive Branch to stop waging war against Americans in America, we’re going to have to do so explicitly.
By a 5-4 party line vote, SCOTUS denied standing in Amnesty v. Clapper today.
The majority opinion, written by Sam Alito, emphasizes separation of power.
The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.
In keeping with the purpose of this doctrine, “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.”
and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs,
It uses a high standard for the imminence of harm, including what I consider a highly ironic passage, considering the Administration’s own standards for imminence.
“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[a]llegations of possible future injury” are not sufficient.
It even says it can’t use in camera review in this case, because doing so would establish a precedent terrorists could use to find out whether they’re being wiretapped.
It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13–14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdisclosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.
Ultimately, though, it said the plaintiff’s fears were too speculative to amount to standing.
It does so by ignoring — and indeed, misrepresenting — the details presented about what is new in this program. Here’s how Stephen Breyer, in his dissent, describes them.
The addition of §1881a in 2008 changed this prior law in three important ways. First, it eliminated the require ment that the Government describe to the court each specific target and identify each facility at which its sur veillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. §1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). §1881a(e).
By contrast, Alito claims the new program only allows the government to target individuals (h/t Julian Sanchez who first pointed this out).
In three earlier posts, I have discussed the problem with turning the FISA Court into the Drone and/or Targeted Killing Court: As I noted, the existing FISA Court no longer fulfills the already problematic role it was set up to have, ensuring that the government have particularized probable cause before it wiretap someone. On the contrary, the FISA Court now serves as a veil of secrecy behind which the government can invent new legal theories with little check.
In addition, before the FISA Court started rubberstamping Drone Strikes and/or Targeted Killings of Americans, presumably it would need an actual law to guide it. (Though Carrie Cordero, who is opposed to the Drone and/or Targeted Killing FISA Court idea because it might actually restrain the Executive, seems to envision the Court just using the standards the Executive has itself invented.) And there’s a problem with that.
The same Congress that hasn’t been successful passing legislation on detention in the 2012 NDAA is certainly not up to the task of drafting a law describing when targeted killing is okay.
As a reminder, here’s what happened with the NDAA sections on military detention. The effort started with an attempt to restate whom we are at war with, so as to mandate that those we’re at war with be subject to law of war detention. The language attempting to restate whom we’re at war with ended up saying:
(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Compare that language with what the actual AUMF says:
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.
Part of the difference arises from the shift to focusing exclusively on persons (you can’t detain a nation, after all, though Palestine might disagree).
Part of the difference comes from the effort — clause 2 above — to extend the AUMF to those associated forces. This was meant to cover groups like AQAP and al-Shabaab, but as we’ll see, it’s one source of the problem with the law.
But part of the problem is that the NDAA language smartly took out the “he determines” and “in order to prevent any future acts of international terrorism” language. The former has long been a giant loophole, allowing the President to define in secret whom we’re at war against. And I increasingly suspect the Administration has been using the latter language to expand the concept of imminent threat.
In other words, in an effort to parrot back its understanding of whom we’re at war against, Congress both introduced some new fuzzy language — associated forces — and took out existing loopholes — the “he determines” and “prevent any future acts.”
So on every issue domestically we’ve got differences, and I haven’t even — we haven’t talked about the fact that my opponent feels comfortable with Washington making decisions about women’s health care that women, Michelle tells me, are perfectly capable of making themselves. (Laughter and applause.)
We haven’t talked about what’s at stake with respect to the Supreme Court. We haven’t talked about what’s at stake with respect to civil liberties. [my emphasis]
Raddack proceeds to demonstrate the many ways that talking civil liberties won’t help Obama.
But she’s missing one thing. As I noted during the debate on the NDAA, Obama’s apologists essentially adopted a “Vote for Obama or Newt (who was then leading the GOP pack) will indefinitely detain you” approach to the NDAA.
But don’t worry about this breathtaking assertion of unlimited presidential authority, [Ken] Gude suggests, because Obama’s not a big military detention fan.
The Obama administration in word and deed has made it very clear that the president does not believe it necessary or appropriate to use military detention authority in the United States. →']);" class="more-link">Continue reading
Amy Goodman is doing a 100 city tour to support public outlets that carry Democracy Now. She also gave a talk about the importance of independent media at Grand Rapids Community Media Center.
And, she had me–live!–on her show.
Man I’ve got a lot of hair!
As much as I, and most who care about Constitutional protections and Article III courts still having a function in balance of power determinations, the recent 112 page ruling by Judge Katherine Forrest in SDNY (see here and, more importantly, here) had fundamental issues that made review certain, and reversal all but so.
The first step was to seek a stay in the SDNY trial court, which Judge Forrest predictably refused; but then the matter would go to the Second Circuit, and the stay application was formally filed today.
Well, that didn’t take long. From Josh Gerstein at Politico, just filed:
A single federal appeals court judge put a temporary hold Monday night on a district court judge’s ruling blocking enforcement of indefinite detention provisions in a defense bill passed by Congress and signed into law last year by President Barack Obama.
U.S. Court of Appeals for the 2nd Circuit Judge Raymond Lohier issued a one-page order staying the district court judge’s injunction until a three-judge panel of the court can take up the issue on September 28.
Lohier offered no explanation or rationale for the temporary stay.
Here is the actual order both granting the temporary stay and scheduling the September 28 motions panel consideration.
This is effectively an administrative stay until the full three judge motions panel can consider the matter properly on September 28th. But I would be shocked if the full panel does anything but continue the stay for the pendency of the appeal.
Last night (well for me, early morning by the blog clock) I did a post on the decision in the SDNY case of Hedges et. al v. Obama. It was, save for some extended quotations, a relatively short post that touched perhaps too much on the positive and not enough on the inherent problems that lead me to conclude at the end of the post that the decision’s odds on appeal are dire.
I also noted that it was certain the DOJ would appeal Judge Forrest’s decision. Well, that didn’t take long, it has already occurred. This afternoon, the DOJ filed their Notice of Appeal.
As nearly all initial notices of appeal are, it is a perfunctory two page document. But the intent and resolve of DOJ is crystal clear. Let’s talk about why the DOJ is being so immediately aggressive and what their chances are.
I woke up this morning and saw the, albeit it not specifically targeted, counterpoint to my initial rosy take offered by Ben Wittes at Lawfare, and I realized there was a duty to do a better job of discussing the problems with Forrest’s decision as well. Wittes’ post is worth a read so that the flip side of the joy those of us on the left currently feel is tempered a bit by the stark realities of where Katherine Forrest’s handiwork is truly headed.
Wittes makes three main critiques. The first:
So put simply, Judge Forrest’s entire opinion hinges on the idea that the NDAA expanded the AUMF detention authority, yet she never once states honestly the D.C. Circuit law extant at the time of its passage—law which unambiguously supports the government’s contention that the NDAA affected little or no substantive change in the AUMF detention power.
Second, Judge Forrest is also deeply confused about the applicability of the laws of war to detention authority under U.S. domestic law. She does actually does spend a great deal of time talking about Al-Bihani, just not about the part of it that really matters to the NDAA. She fixates instead on the panel majority’s determination that the laws of war do not govern detentions because they are not part of U.S. domestic law. Why exactly she thinks this point is relevant I’m not quite sure. She seems to think that the laws of war are vaguer and more permissive than the AUMF—precisely the opposite of the Al-Bihani panel’s assumption that the laws of war would impose additional constraints. But never mind. Someone needs to tell Judge Forrest that the D.C. Circuit, in its famous non-en-banc en-banc repudiated that aspect of the panel decision denying the applicability of the laws of war and has since assumed that the laws of war do inform detention authority under the AUMF. In other words, Judge Forrest ignores—indeed misrepresents—Al-Bihani on the key matter to which it is surpassingly relevant, and she fixates on an aspect of the opinion that is far less relevant and that, in any case, is no longer good law.
Lastly, Ben feels the scope of the permanent injunction prescribed by Forrest is overbroad:
Judge Forrest is surely not the first district court judge to try to enjoin the government with respect to those not party to a litigation and engaged in conduct not resembling the conduct the parties allege in their complaint. But her decision represents an extreme kind of case of this behavior. After all, “in any manner and as to any person” would seem by its terms to cover U.S. detention operations in Afghanistan.
First off, although I did not quote that portion of Ben’s analysis, but I think we both agree that Judge Forrest pens overly long and loosely constructed opinions, if the two in Hedges are any →']);" class="more-link">Continue reading