After Killing the Guy Who Started this War, We Simply Redefine It

Used to be, when you vanquished your enemy, you declared victory and went home.

Not this time. Just a week after the death of Osama bin Laden–who declared war on the US in 1996–Buck McKeon has renewed his effort to rewrite the 2001 Authorization to Use Military Force so as to include our secret wars in Yemen, Pakistan, and wherever else an unchecked President wants it to be. As part of the bargain, McKeon’s GWOT 2.0 would give the President the authority to detain our enemies in this newly-redefined war for the length of the hostilities (otherwise known as “forever”).

Benjamin Wittes has a good analysis of McKeon’s GWOT 2.0 here.

Now, I realize it’s not as simple as declaring victory and going home. In fact, I bet that a new AUMF, which would divorce the President’s super-duper terrorist fighting powers from the territory of Afghanistan, might make him more likely to declare victory in Afghanistan and go home. Moreover, by redefining the GWOT such that we can attach those super-duper powers to, say, Anwar al-Awlaki rather than 9/11, then the President won’t face legal pressure to free indefinite detainees because the war has ended. While it won’t happen yet, if the US were to nab a few more key al Qaeda leaders using the intelligence seized from OBL’s compound, you could make a legitimate argument that it’s time to let the indefinite detainees free.

I’m just betting, but I suspect that’s the direction the Administration’s thinking will head from where it’s currently at, which–according to Josh Gerstein–is undecided.

A White Houses spokesman declined to comment to POLITICO about the administration’s official position on whether the AUMF needs to be reaffirmed or replaced.

However, a senior administration official said Obama aides are split over whether to endorse the idea of updating the use-of-force resolution.

“After ten years, you may need something other than the AUMF,” said the official, who spoke on condition of anonymity. “As an intellectual policy matter you can make a very good argument for doing that [but] there are divisions.”

It would offer them flexibility in Afghanistan just in time for the electorate to voice its displeasure with our endless wars abroad, while guarding super-duper powers the President has come to apparently cherish.

I realize, too, that we can’t say “we killed OBL, so let’s stop fighting terrorists.” But therein lies the key issue, the week after OBL’s death. Note the logic Wittes gives for supporting some kind of new AUMF (though he has some concerns about McKeon’s version):

This provision is sure to come under fire from the political left, which will argue that it is an expansion of the war just as Bin Laden has been killed. This is silly. It largely enshrines in law the administration’s current interpretation of the AUMF as pertains to the scope of the conflict and the scope of detention authority in the conflict. And it would put Congress explicitly behind the power to detain the enemy for the first time. It is more of an updating of the AUMF, whose focus on the perpetrators of the September 11 attacks is requiring increasingly strained interpretation to address the combatants in today’s fight, than an expansion of it. The provision seems to me very healthy–for the reasons I have given in the past.

While Wittes’ support for a new AUMF have been more thoughtful in the past, the logic here is basically that it is a good thing for Congress to endorse what a President is already doing if what he is already doing “strain[s] interpretation” of an original Congressional authorization. It’s the same kind of logic that held Congress should pass the FISA Amendments Act with immunity to give legal sanction to what the President was already doing. And like the FAA, a new AUMF would take place without an assessment of efficacy. A year after FAA passed, the IG report on the illegal wiretap program showed that program had not been all that effective. But it was too late to go back and put those Presidential powers back in their genie bottle.

About the most valuable reason for engaging with the torture apologists’ claims that torture led to OBL also has to do with efficacy. Human intelligence was critically important–particularly the kind practiced by people who could recognize the importance of a courier. NSA wiretaps abroad was crucially important. Our partnership with Pakistan was crucial as well. But even accounting for OBL’s dead daughter, it’s not clear that dropping drones based on dubious intelligence was all that effective (even ignoring the blowback that has led directly to radicalization of others). And given that a new AUMF would primarily authorize drone strikes in sovereign countries and indefinite detention (both enhanced wiretapping and intelligence ops are now tied to terrorism more generally, not an AUMF), it’s not clear that it would support effective policies.

Spencer addresses this point well–particularly the expansion of the AUMF to include “associated forces”–in his story on GWOT 2.0.

“Associated forces” could place the U.S. at war with terrorist entities that don’t concern themselves with attacking the United States. Think Lashkar-e-Taiba, the Pakistani terrorist group aligned with al-Qaida that pulled off the Mumbai bombings of 2008. Under the House language, there’s nothing to stop Obama or his successors from waging war against them. It comes close to “terrorism creep,” says Karen Greenberg, the executive director of the Center for Law and Security at New York University.

Greenberg doesn’t dispute that the war on al-Qaida goes far beyond bin Laden. But before voting on an expansion of the war — beyond al-Qaida — “we need to absorb first what the death of bin Laden means,” she says. “We need to stop and think and re-think. The idea that we’re going to keep reacting and not have a thoughtful time out is just unacceptable.”

I’d add one more thing. If we embrace GWOT 2.0 without some real thought about what the most effective response should be, we’re also going to chip away at more widespread international adherence to rule of law. You’ll increasingly see countries using our practices as justification to, say, assassinate a political figure in a neighboring country as a terrorist. You’re going to see not just the US, but the entire globe, accelerate down a slippery slope, potentially greatly destabilizing the world as a result.

The Obama Administration has an excuse to rethink (though the attempted assassination of Anwar al-Awlaki suggests they don’t want to conduct such a rethink) not just about what we’ve done–and the legal cover that all that really should have had–but what has been effective and what has been counterproductive. It seems Republicans are in such a rush to double down on war powers that they may lead us, and the world, further down the path of stupid belligerency.

I think a parade to celebrate would be a much smarter idea.

  1. tjbs says:

    I say we go back to all the constitutional requirements including Congress declaring war. All these acts illegally amend the constitution without the formality of an amendment process like AUMF, Patriot Act,FISA, ect.

  2. donbacon says:

    Admiral Mullen has consistently characterized Washington thinking, probably.

    3 February 2006, Remarks by Adm. Mike Mullen:
    “In many ways this is a long war, and it’s a long war that we’ll be engaged in for generations.”

    May 8, 2007, In his opening remarks, Mullen told Pearl Harbor sailors: “I honestly believe this is the most dangerous time in my life. “The enemy now is basically evil and fundamentally hates everything we are — the democratic principles for which we stand … This war is going to go on for a long time. It’s a generational war.”

    21 Feb, 2008, saying that the US is in a very long war: “We’re in our sixth year of war right now, and we’re at the beginning of what I see as a very long war, very much a sustained effort. . .”

    Apr 5, 2011, Conflicts in the Middle East will continue to keep the eyes of the United States military on the region, Mullen said. “We see this as a time of persistent conflict,” Mullen said. “All our services will continue to deploy.”

  3. bobschacht says:

    Thanks for this, EW!
    I’m one of those commie pinko leftist DFH who think that we should just declare victory and declare Mission Accomplished…
    But wait. One of the many bad things about the AUMF is that there’s no clear end. What it said was

    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 President could declare that all “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” have either been killed or neutralized. But if he did so, some Republicans would declare, no doubt, that there remain “organizations or persons” who “aided” the 9/11 terrorist attacks, and that the AUMF mission is therefore not complete. Therefore, ISTM, there is a higher mountain to climb: The way the AUMF was written, it will take more than a Presidential “Mission accomplished” moment. Congress will have to join in.

    But usually it takes an armistice to end a war. And an armistice means that some gaggle of defeated opponents must agree to stop fighting.

    So one of the most damnable– and I do mean damnable– features of the AUMF is its endlessness. The best we can hope for is a Presidential “Mission accomplished” backed by a Congressional resolution. Are you getting what I mean by “damnable”? Or have I missed something?

    And I agree with your answer to donbacon @3. This is exactly what Bin Laden’s goal was: to lure us into something that would bankrupt us. He doesn’t need to be alive anymore. We can achieve his objective all by ourselves. And by now, the AUMF helps him, more than it helps us.

    It might help if Congress would amend the AUMF to authorize the President to declare “Mission Accomplished” and end it, but it is more likely, as you point out, for Congress to expand or extend the mandate, rather than end it.

    See what I mean by “damnable”?

    Bob in AZ

    • ottogrendel says:

      What power-hungry, egotistical President, Chief of Staff, Senator or similar political figure is going to reject the characteristics that helped get them to their position of power in the first place by smashing the Holy Grail of Power? I wouldn’t bet a dime that redress of grievances will be coming from authorities.

      Agreed. The endlessness is damnable, but it’s also the goal. It’s the ultimate reflection of unchecked power.

    • earlofhuntingdon says:

      Yes, and OBL meant bankrupt us morally as well as financially.

      As for the latter, it’s not just about running out of money, but where the money goes. The state deligitimizes itself when it bankrupts the things that matter to the common people – jobs, infrastructure, education, reasonable privacy – by redirecting available money away from butter into guns, guns, guns. That’s a success for OBL, too.

      • ackack says:

        Indeed. It is a supreme embarrassment to me the way our leaders, and many of us citizens, so utterly over-reacted to 9/11.

        Don’t get me wrong, it was a serious attack, but it was not an existential threat to the nation.

        We gave OBL and Al-Qaeda their wildest dreams come true with our immoral, knee-jerk, reactionary, rights-stealing, fear-mongering, war-mongering, bankrupting, bullshit.

        And still, some(most?) are happy with the sequence of events in the aftermath.

  4. radiofreewill says:

    I think the superpowers are here to stay.

    Our best hope for balancing them with respect to our Rights as Citizens, imvho, is to have safeguards built-in to FISA that insure that all Executive Branch activities are known to Congress and the Courts – even, or especially, when they are of the most secret nature, like the Global War on Terror ™.

    The AUMF seems to have been interpreted by Bush in its most extreme understanding – that of “continuous state of emergency.” He never let things settle-down into a ‘normalized’ state – where the expectation would naturally be that Congress and the Courts would give over-sight and judicial review to the Executive’s actions.

    With bin Laden dead, now seems like an appropriate time to harness the checks and balances of the Constitution back onto the Executive, so that all of its activities – even those done in its capacity as the unitary executive in future emergencies – fall within the orderly spectrum of our finely-crafted representative democracy.

    So, we may have to live with the reality of the destructive potential of the superpowers like we live with ICBMs – it’s just that we’d all feel better if the superpowers had similar safeguards on them, too.

  5. donbacon says:

    The Congress is fine with Pentagon money coming into their districts/states, in fact they brag about how much additional money they have gotten for their constituents and complain mightily whenever the Pentagon tries to close a base or terminate a contract. The New England delegation fights to retain shipbuilding in Bath Maine, the New London Connecticut congressman bragged about doubling submarine production, etc.

    When there’s a war on, the Pentagon budget can’t be cut b/c it’s necessary to support the troops, so as long as we have troops at war the gravy train continues.

    The military is fine with unending conflict as the higher-ranking officers go from the Pentagon to large corporations, onto news commentary programs and/or into civilian government positions in revolving-door personnel shuffles.

    The only thing necessary to make the whole thing work is an enemy somewhere and that’s the easy part. Gaddafi, terrorism, Saddam Hussein, Ahmadinejad, China, North Korea — the possibilities are endless.

    “Why, of course the people don’t want war . . . But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship . . . Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country..”
    —Hermann Goering, 1946

    War Is The Health Of The State — Randolph Bourne.

    • themisfortuneteller says:

      Yes, about the Warfare Welfare and Make-work Militarism, Don — the perfect culmination of Parkinson’s Law and the Peter Principle. The rampant, revolving-door careerism infecting America’s “elite” political/military caste no doubt furnishes some of the most egregious examples illustrating America’s self-inflicted, imperial decline.

      And the fascist quote from Goering always bears repeating in regard to crony-corporate crypto-fascist America. For years I’ve thought that a couple of fascist powers lost WWII (not all of them, of course — Fascist Spain remaining unaffected), but that Fascism itself simply moved its world headquarters to America where it continued to metastasise over the ensuing decades, right up until the present. Recently, I came upon a beautiful expression of this truth, one that I wish I could have composed myself:

      “The Fascist powers were destroyed. But what about fascism — as idea, as reality? Were its essential elements — militarism, racism, imperialism — now gone? Or were they absorbed into the already poisoned bones of the victors? A. J. Muste, the revolutionary pacifist, had predicted in 1941: ‘The problem after a war is with the victor. He thinks he has just proved that war and violence pay. Who will now teach him a lesson.” Howard Zinn, A People’s History of the United States.

      As the career lifers back in Vietnam used to say: “Don’t knock the war, its the only one we’ve got.”

      To which we conscripted or bullied-into-enlisting types would reply: “We lost the day we started. We win the day we stop.”

      Sure glad I got the hell out of that demented asylum while I still had the chance.

  6. mzchief says:

    The whole idea of turning mental events into commodities, basing an economic system on that for a rigged, on-demand at the speed of light HFT-jiggered, command and control theft-con-omy is kind of amusing from the exospheric perspective but it is what the USG has helped do because its corporate welfare recipients don’t want to do real work to earn their lucre but would prefer to psyops their way in to stealing from everybody else. Their patchwork justifications-after-the-fact make less and less sense and the USG is still roaming about like “a wounded bear, its instincts imperial but its power projection unproductive” (by Simon Jenkins, Nov. 28, 2010) but now with kinda cyborg-y powers and drones! The real world effects of that is causing real hardship and pain to other who don’t like it. Iran, China and Russia will continue to destroy the USD since the USG is simply doubling down on what it’s doing. *dawG*

    So has the PakistanG made a Devil’s Bargain with the US to support it attacking Iran?

      • mzchief says:

        Fortunately, none of us can play that game very long because of something called “reality” but we can sure lose a lot– if not everything– in the process. If a small group of folks can get a much larger group of folks to play that game, civilizations can fall. Henry Kissinger really does belong in prison as do a few others.

  7. ottogrendel says:

    Re an unchecked President with super-duper powers: “In the absence of justice, what is sovereignty but organized robbery?” –St. Augustine

    Retaining the AUMF is less about fighting terrorists than it is about the naked power of an executive above the law. Just like the face of perpetual war changed from the Godless Commie to OBL, what prevents the external object of that unrestrained executive to be changed in the future. Yesterday “Communist,” today “Terrorist,” tomorrow . . . ?

  8. PeasantParty says:

    GWOT is unconstitutional and I do not see justification for a Part Two. Besides, the emergency military spending and GWOT funding is also cause to throw out every single member of Congress! How can they allocate war funding without a declaration of war? They can’t! Not legally anyway.

    • tjbs says:

      Our supreme court says if they fund it it makes it legal, Original bullshit or sumpting.

      They found the “may’ in place of “shall” constitution I’ve never seen.

      See we’re in a war that isn’t war or sumpthing.

    • greybeard says:

      With respect to the idea that war was never declared, our side had control of the presidency and both houses of congress for two years – and they not only endorsed the wars, they paid for it. Or at least they borrowed the money and used that.

    • kipchuk says:

      “Legally” went out the window decades ago. The Federal Government hasn’t followed the Constitutional requirements on war since during the Second WW, when the father of the CIA the OSS, together with the Pentagon, saw that a winning game plan was on the table for the taking. And they took it. And the American people have never demanded the Constitution be enforced since. So the rule of law, as contained in the Constitution, has atrophied to the point that it is not reviveable without a Second American Revolution.

      Another virtually silent killer of the Constitution and democracy is the “Interstate Commerce Clause”, that is used as a bludgeon whenever the Federal government wants to squelch shoots of freedom that sprout up from time to time (witness the recent smack down of States on medical marijuana). It is an historical fact that independent States came together to create the Constitution and the Federal government, not vice versa. The ICC was the original weapon of choice to destroy States rights used by Lincoln to justify the incredibly brutal “Civil War” (no, I’m not an unreconstructed Southerner. I’m a Yankee by birth and choice).

  9. PeasantParty says:

    I’m still waiting for those skunks in Congress to jerk away Veterans support for these illegal wars because…

    Well, just because it was never formally declared a war! You don’t think they wouldn’t do it? Think again.

  10. lsls says:

    Both sides are all giddy at the “success” of their shoot ’em up they want any legal excuse to play their deadly game in broad daylight. I guess they never learned that cowboys and indians, hide and seek, freeze tag, video games, are fucking “games”. Everything is “good guys” “bad guys”…fucking grow the fuck up!! Better yet, fuck off!!

    Shame shame shame

    This just makes me wanna pewk.

  11. ottogrendel says:

    The issue is not whether AUMF or any relative tangents like wire tapping are effective. Efficacy is irrelevant. An executive with super-duper powers is beyond accountability. That’s the whole point of having those unchecked powers, that’s what they mean. Like scientific data on evolution presented to a dogmatic Creationist, it misses the point, does not satisfy the causes that resulted in blind faith to begin with, and usually ends up failing to enlighten the faithful. It is not an issue of evidence, efficiency or efficacy. It is an issue of authority for its own sake and the faith and deference to that authority that help provide the basis for its power.

    In pursuit of such unaccountable power for the executive, George W. was offering an accurate description when he dismissed the importance of OBL. In the context of solidifying naked executive power, OBL was at best a temporary expedient, if not irrelevant. The same goes for “terrorists.” What is important here, what is really at stake, is the existence of the executive above the law.

  12. EternalVigilance says:

    Haven’t you figured it out yet?

    Government’s enemy is always the people.

  13. Knut says:

    For a bit of history, the creation of an executive based security state divorced from any legislative review is what got the Germans into so much trouble, starting with Bismark, who deliberately engineered the device in the late 1860s. It takes time for the fruits to fall from these evil trees, but they eventually do fall.

  14. kipchuk says:

    Whatever way they spin the redefinition, it will come up “War for War’s sake.” The objective is to maintain and expand the “Empire of Bases.” America is now firmly under the control of several cartels, including the CIA-Pentagon cartel that will not allow a “War on …” to expire any time soon.

  15. harpie says:

    Obama’s multiple choice question:

    GWOT2.0 is:

    ___A-a “dumb war”

    ___B-not a “dumb war”

  16. earlofhuntingdon says:

    We can’t stop fighting to prevent terrorist acts and to prosecute those who have committed them, any more than we can stop investigating and prosecuting bank fraud, political corruption, monopoly abuse, widespread lying in accounting and public disclosure statements, gun running, and abuse of police powers.

    Killing OBL and leaving his “forces” in disarray, however, does mean the rationale for making war in Afghanistan – to kill, capture and stop those who attacked us on 9/11 – has become largely moot. The cost-benefit of that campaign, so large an expenditure against so few targets, was never efficient for anyone but military contractors.

    Either we revert to that quaint document called the Constitution, and its rules about executives asking the legislature for the power to declare or make war, and its rules about the limits and reach of legitimate police powers, or we follow the Orwellian path toward war as peace.

    We have stopped where the road diverges in the evening woods. We can take the road less traveled, the rule of law, or the well-worn road to unaccountable executive power. It will make all the difference.

    • ackack says:

      “We can take the road less traveled, the rule of law, or the well-worn road to unaccountable executive power.”

      Given the lack of appreciation for law, history, and rights, on the part of not only the MOTU, but also on the art of a seemingly growing number of US citizens, and the fact that we are already well and truly fucked, I see an endless series of uncontrolled Chief Executives, each adding their own special twist to our fuckedness.

      The only question in my mind is how long before we have a 100% surveillance apparatus not just in place, because that’s already been done, but fully implemented. I’m finding it more and more difficult to even be able to care any more, I am so cynical since Obama’s election. despite all the excellent work on the part of FDL, of which I am a member, it really is quaint to believe that somehow our voices are not just being heard, but taken seriously, by anyone but we the choir.

  17. tjbs says:

    Why declare war ?

    You know my neighbor is pissing me, off always dumping his lawn trash on my property.

    I declare war because he doesn’t listen to my reasoning.

    So I get out the tractor, push his shit back onto his property and put up deer fence to prevent repeating that behavior.

    Do I kill him ? No because we resolved our disagreement ,

    Do I invite him to the holiday open house ? Sure because our desire is to live in relative peace.

    It’s over and my reasons for declaring war have ended.

    And that’s why the founding fathers put congress in charge of declaring war including the end point, they already lived through this nightmare of endless wars where they came from, that we find ourselves in once again.

  18. holeybuybull says:

    When is the US govt. going to end this Kabuki theater, and just disband Congress and move the White House to the Pentagon?

  19. potsdam602 says:

    The definition of a loser–to not be the reason for war at the time of your death, but killed in cold blood as though you were the reason. Obama is allegedy dead at some time w/in the past 9 years. War over.

    I can’t think of anything that would have ticked ObL off so much where he would want to hurt many random Americans. Only something personal could have bothered him so much. Or else he didn’t do it. Wasn’t ObL a Bush family friend before he was a Bush enemy?

  20. MickSteers says:

    Oxymoron Watch:

    “the official, who spoke on condition of anonymity”

    How is one simultaneously official and anonymous?

    Our fearless media beggars the imagination.

  21. designcreature says:

    We can’t go home from any country until we’ve totally annihilated Israel’s enemies and secured all oil rights from any where we want them. The cost to the USA be damned.

  22. themisfortuneteller says:

    To paraphrase George Orwell: “All endless wars are endless, but some endless wars are more endless than other endless wars.”

    Any attempt to modify the officially published gobbledegook known as the AUMF — instead of revoking it or letting it lapse — in fact only refuses to acknowledge the possibility of “ending” any endless Presidential war once a President has managed to begin one as a means of grasping more unconstitutional power to himself and his office.

    The issue involves “finishing” and “ending.” It does not involve “continuing.” Ignore any and all Orwellian Newspeak designed deliberately by our government to distract and deceive us. We lost the day we started. We win the day we stop. The issue involves “stopping.” Keep focused on the vital issue.

  23. potsdam602 says:

    at 54– Correction–Osama is allegedly dead at some time within the past 9 years. War over.

    Really, what did tick Osama off to hate America so much?