War, Intelligence, Law and Forever

There are a number of oddly coinciding legal issues that I wanted to pull together into one post.

The Administration Fudges the War Powers Act

First and most obviously, today is the day the 60-day grace period for Libya under the War Powers Act expires. Obama should, by law, have to go to Congress to get sanction for our third war against a Muslim country.

Mind you, Congress isn’t going to make the President do that.

But just to be safe, the Administration is going to conduct some kind of legal hocus pocus to make sure it can claim it isn’t violating the WPA.

A variety of Pentagon and military officials said the issue was in the hands of lawyers, not commanders. Several officials described a few of the ideas under consideration.

One concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets.

Over recent weeks, the Predators have been the only American weapon actually firing on ground targets, although many aircraft are assisting in refueling, intelligence gathering and electronic jamming.

By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.

Another idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.

My money, given the way that the OLC wrote a memo retroactively justifying the first several weeks of the war that culminated with us ceding control to NATO (and for other reasons), is that we’ll choose option A; we’ll pretend that we’re just conducting a very expensive unfunded intelligence operation in support of our NATO allies and call that good.

Congress Tries to Force Obama to Fight the Forever Whereever War

Then there’s the Republicans efforts to rewrite the AUMF in the spending bill, which would make it a lot easier to pass without a lot of debate and certainly without concerted attention to it. Ben Wittes has been orchestrating a debate on this topic over at Lawfare (here, here, here, here, here, here, and here).

There are a couple of elements to this. First, the belief by both the right and left that the Administration has already exceeded the terms of the Afghan AUMF by striking at groups that either didn’t exist in 2001 or didn’t support the 9/11 attacks. If we’re right, it would mean such things as drone strikes in Yemen are legally questionable. And for those who believe we must use drones in Yemen and Somalia, it seems clear we must rewrite or expand the AUMF to incorporate these new targets.

In addition, there’s the question of detention. I believe that we are close to sufficiently achieving the objectives in the 2001 AUMF that it might require Obama to base the detention of Gitmo detainees on something more permanent. McKeon would like to institutionalize Obama’s preferred indefinite detention, but by endorsing detention going forward, might invite further indefinite detention.

There are probably some other things our government is doing under the guise of war that we don’t know about (but that McKeon presumably does and endorses).

But for the moment, let’s assume that the forever whereever war authorizes the President to continue to make up the rules of this war as he goes forward, with no defined end point.

And, as Adam Serwer implies, McKeon is doing this not via free-standing statute (which is what he first tried), but on the spending bill, making it much harder to oppose.

But the country never made that decision–the country made the decision to go to war against the perpetrators of the 9/11 attacks. That’s why I think that this new AUMF shouldn’t be something that gets tucked into a spending bill–it’s the kind of thing that the American people need to consider carefully. I suspect public opinion is probably on McKeon’s side here, but at the very least, a separate vote on a new AUMF would have the advantage of sanctioning this larger conflict in a more public and accountable manner. More importantly, we could be having a conversation of what the end of the “war on terror” is supposed to look like.

This is, in other words, the head of the House Armed Services Committee acting where he has greatest powers, in mapping out how DOD can spend money, to institutionalize the authority of the President to evolve the terms of the war against terrorists as he goes on.

PATRIOT without Sunset

At the same time as one corner of Congress is acting at the area of its strength, another corner of Congress is acting with typical cowardice. John Boehner, Mitch McConnell, and Harry Reid are pushing a vote on Monday to extend the PATRIOT Act another 4 years, until June 1, 2015.

Mind you, it might not be just their idea. This is the kind of thing Obama might encourage (though the Administration reportedly backed some, but not all, reforms on the table). This is a way for everyone involved–except for the liberals and handful of TeaParty candidates who will oppose the bill–to just endorse the status quo rather than acknowledge that PATRIOT has some real problems as well as some unnecessary authorities.

And so, with each new extension of a PATRIOT sunset, the myth that it actually will ever sunset gets weaker and weaker.

I’m interested in this development, though, for several reasons. Aside from detention and any secret stuff McKeon knows about and the Afghan-turning-into-Pakistan war, many of the key measures we use to fight terrorism are surveillance related. So at one level, with the never-sunsetting PATRIOT Act, we’re seeing the creeping permanence of the war on terror from an intelligence perspective, too, though by Congressional cowardice rather than Congressional strength.

The Osama bin Laden Strike

All of this is taking place against the background of Osama bin Laden’s death which, in a more noble era, would have steeled our elected representatives to reassess our war against terrorists.

The OBL death is interesting from this front for two other reasons, though.

First, the means. Rather than kill OBL with a drone strike, which (as Robert Chesney observes) the Administration seems to be tying to a war power, we took him out with JSOC operating under the auspices of CIA. We feel free to use JSOC in a variety of locales that are no declared wars. But doing it under Leon Panetta’s direction maintained the legal fiction that DOD operates exclusively in Afghanistan while CIA manages everything in Pakistan.

But it appears that fiction largely serves Pakistan’s benefit. In defending the legality of OBL’s killing (something I don’t contest), Harold Koh emphasizes the AUMF and not–as he might have–the September 17, 2001 Finding that authorizes CIA to capture and detain (and kill, if it came to that) top al Qaeda leaders.

By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added). Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

In other words, Koh could have made either an intelligence or a war justification for the killing (both of which, IMO, would have been legally more sound than the hocus pocus they’re pulling in Libya). He chose to go the AUMF route. That’s not surprising (we’re not supposed to talk about that 2001 Finding, you know). But I find it worth noting.

I’m most interested in that approach because one route we could have gone, after OBL’s death, was to commit to use JSOC raids rather than drones (which we have a history of doing without AUMF), as well as surveillance that works. We could have done most of what we’re doing–save the drones and the foreever detention–without an AUMF. (That’s not saying I endorse using JSOC w/o a declared war, but it’s what we do.) The way we think of OBL’s death obviously doesn’t institutionalize that choice, but it does prevent us from using this moment to rethink our approach to terrorism

Altering the Nature of our Nation by Refusing to Think

All of which, IMO, makes this a pretty remarkable moment. In several ways, we’re about to endorse (either by apathy or aggressive choice) making our forever war permanent, not to mention the President’s ability to just bomb wherever his OLC can invent a retroactive excuse for. Sure, we’ve been headed in this direction for a while. But at a moment we might have made another choice, we’re doubling down.

Of course, it’s not going to end up being a forever war.

The way we approach terrorism, generally, will in the medium term bump up against the reality that domestic right wing terrorists now may be more dangerous than Islamic terrorists, particularly the informant-induced “homegrown” terrorist we seem to be focusing on (plus, the warlovers want to make drug cartels terrorists as well). Eventually, everyone will become a terrorist, at which point Americans might finally get tired of sacrificing their liberty and privacy for a myth that some terrorists are worse than other organized criminals.

More importantly, we’re going to go broke. Maybe not before Republicans strip our entire safety net to pay for the forever wars we’ll be fighting. If that happens, we’ll lose the forever wars because no one will be educated enough to fight the forever wards, to make and operate our fancy war toys. But ultimately we can’t continue to add multi-billion dollar wars with no discussion, because we simply can’t afford it.

In the meantime, though, our utterly failed political system is just going to creep further and further away from our constitutional roots and towards a vastly different national security state.

  1. JTMinIA says:

    Tom Harkin was just interviewed on Iowa Public Radio and was asked, point blank, whether the expiration of the 60-day “grace” period means that Obama must either withdraw from Libya or use the extra 30 days to get approval. Harkin, who wrote a letter to Bush in 2007 to remind Bush that he did not have authorization to unilaterally attack Iran, dodged the question by saying that he wasn’t sure if our treaty obligations to NATO make the limitations and requirements of the War Powers Act moot. Note that I wrote that carefully to reflect exactly what Harkin said: Harkin did not say that our NATO obligations definitely gave Obama authorization to continue; he said that he wasn’t sure.


  2. matthewj says:

    emptywheel, thanks for bringing all this information together in the same post. The obvious conclusion is that we really, really need to put a stop to this. I am strongly of the opinion that the only way to do that is to bust the legacy parties that have been irredeemably corrupted by the oligarchs. I would like to see us focus all our energy on how to do this and would really like to see ideas and discussion along these lines be a major focus here at FDL. What do you think about this emptywheel?

    I have tried to get the discussion going with my best idea: No Confidence Protest Vote 2012, the follow up FAQ and details about the new social media activism tool I am calling Pledge Based Activism. The first post did very well here at FDL spending a couple days on the rec list and generating quite a few comments. Traffic has died down here and the additional posts did not do as well, although Facebook traffic for the first post is still growing.

    Everyone, please jump in with your ideas and discussion! Breaking up the legacy parties is our only hope. The oligarchs of the American Empire are driving the entire world off a cliff (practicing neoliberal and neofeudal economics leading to a permanent underclass, refusing to deal with climate change, adopting foreign policy that increases Muslim radicalism, etc, etc , etc). This situation will only grow worse and worse until it erupts in major violence if we do not throw them out in a non-violent fashion first. Being a pacifist, I very strongly believe we need to throw them out now. Please help us find the right strategy and path to make this happen.

    These wars need only be as permanent as the American public allows them to be (the key word here is allow, not desire – desire alone will not stop them but united action can)…

    Peace be to all…

  3. powwow says:

    As to your first profoundly-important topic, Marcy, thank you (and Glenn Greenwald) for pointedly marking this infamous 60th day of unauthorized presidential war against Libya, unilaterally conducted by Barack Obama and his military chain of command – not only without Constitutional authorization, but in open, contemptuous violation of Constitutional and statutory prohibitions, to yawns from the other two branches of government and most of the American media. I’ve previously said my piece about that appalling scene: The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It

    John Boehner [though the House has been in recess this week], Mitch McConnell, and Harry Reid are pushing a vote on Monday to extend the PATRIOT Act [three of its provisions are due to expire on May 27, 2011] another 4 years, until June 1, 2015.

    As to your third important topic, on the off chance that there might be at least one person of good faith in the Senate (have Rand Paul and Mike Lee been neutralized yet?) committed to taking every opportunity to derail or at least to delay this backroom, underhanded, undemocratic, irresponsible private PATRIOT Act deal, I wanted to see how the deal first emerged into public view on the Senate floor (to monitor whether opportunities for mere “objection” to its steamrolling are being taken advantage of).

    Here’s what happened on the floor Thursday evening (yesterday, at about 6 p.m., I believe, hours after the last business had been conducted in the Senate – which was the preordained failure of the Liu nomination’s supermajority cloture vote at 2 p.m. – and about an hour before the Senate adjourned at 6:40 p.m. Thursday until 2 p.m. on Monday):

    Mr. REID. Mr. President, I ask unanimous consent that it be in order to proceed to S. 1038, introduced earlier today.

    The ACTING PRESIDENT pro tempore. Without objection it is so ordered.

    Mr. REID. I move to proceed then to S. 1038.

    The ACTING PRESIDENT pro tempore. The clerk will report the bill by title.

    The assistant legislative clerk read as follows:

    Motion to proceed to the bill (S. 1038) to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 2015, and for other purposes.


    Mr. REID. Mr. President, I send a cloture motion to the desk.

    The ACTING PRESIDENT pro tempore. The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.

    The assistant legislative clerk read as follows:

    Cloture Motion

    We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, hereby move to bring to a close debate on the motion to proceed to S. 1038, a bill to extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004 until June 1, 2015, and for other purposes.

    Harry Reid, Dianne Feinstein, Bill Nelson, Amy Klobuchar, Jeff Bingaman, Richard Blumenthal, Mark R. Warner, Sheldon Whitehouse, Benjamin L. Cardin, Kay R. Hagan, Kent Conrad, Charles E. Schumer, Joe Manchin III, Sherrod Brown, Mark L. Pryor, Jeanne Shaheen, Joseph I. Lieberman, Kirsten E. Gillibrand.

    The ACTING PRESIDENT pro tempore. By unanimous consent the mandatory quorum call has been waived.

    To try to translate some of what that entails into English:

    S. 1038 is a bill that Senate Majority Leader Harry Reid introduced yesterday, which was co-sponsored by one other person: Senate Minority Leader Mitch McConnell. As indicated above, it would extend the expiring PATRIOT Act provisions through May, 2015. As of today, midday Friday, the text of S. 1038 has not yet been made available to the Library of Congress by the Government Printing Office – a day after Harry Reid made a motion to proceed to the legislation without any of the preliminary readings of the bill (which were waived by unanimous consent), never mind any committee consideration of the bill.

    Before S. 1038 was suddenly introduced on May 19th in the Senate (the same day Reid moved to proceed to the legislation), Harry Reid had prepared for the calendar (and thus for a motion to proceed to the floor), by bill readings over two consecutive days, another bill, S. 1022 (containing an extension of the expiring provisions through 2014). S. 1022 was first introduced by Harry Reid (alone) on May 18th and is likewise not yet available for reading at the Library of Congress.

    But instead of S. 1022, the other bill (S. 1038, with the longer extension, co-sponsored by McConnell) was suddenly introduced yesterday, was not referred to any committee, and was not given the two subsequent days of readings that are required under the rules to bypass committee consideration and go straight to the calendar. Did every Senator make a decision to give their consent to this ugly speed-up of normal procedure for consideration of legislation? Or did Reid/McConnell pull a fast one on them? Either way, an easy opportunity for delaying S. 1038 by simple “objection” from one Senator was evidently lost last evening.

    Since the passage in late February of the short (three-month) extension of the expiring PATRIOT Act provisions, that was forced by Rand Paul and others to give the new Congress time to actually examine, debate, and amend or repeal these provisions, the Senate Judiciary Committee has held no hearings of any kind on this legislation – full committee or subcommittees (though I’m sure that new Judiciary Committee member Mike Lee, for one, would have asked Chairman Pat Leahy for such hearings). If any other Senate committee (Intelligence, chaired by Dianne Feinstein, for example) did so, I’m unaware of it. House committees have had some perfunctory hearings, called by chairmen fully in favor of extending without amendment the expiring provisions, but they at least went through the motions, unlike the Democratic Senate (which is undoubtedly taking its cues from Barack Obama, on this as on everything else, the separation of powers be damned).

    Last evening then, Harry Reid received the permission of every Senator to waive the required readings of S. 1038, introduced just that day, and then immediately made a motion to proceed to the legislation (which is a debatable motion).

    However (just as Reid did with the FISA Amendments Act, knowing that the fix was in), immediately after making the motion to proceed to S. 1038, before one word of debate on the motion had been uttered, Harry Reid – joined by 17 of his Democratic colleagues (18 altogether, although only 16 were needed) – filed a cloture motion to “bring to a close” that non-existent debate, with a supermajority vote on that cloture motion to be held at 5 p.m. on Monday, after a possible total of two hours of debate on the motion to proceed. The names of Reid’s 17 colleagues are bolded above.

    If the Monday cloture motion to end debate on the motion to proceed passes, Rule 22 order will supplant regular order in the Senate, and there will be multiple opportunities for a single Senator to delay a final vote on S. 1038, quite possibly past the Senate’s planned Memorial Day recess. Whether or not those easy opportunities are taken advantage of will be very telling as to whether there’s any real interest in the Senate in foiling this legislation by those nominally opposed to it. [One such easy way to delay the bill – which is rarely taken advantage of – would be for a Senator to “object” to tolling the required post-cloture debate time overnight while the Senate is adjourned or otherwise in recess.]

    [Aside to FDL: “An error has occurred: Please enter a comment!” was repeatedly received when I tried to post (“Submit”) this comment using Opera, as usual, though Preview worked fine. After switching to Firefox I was able to successfully submit the comment.]

    • thatvisionthing says:

      That’s how Kent State started — April 30, 1970, Nixon announces invasion of Cambodia w/o Congressional approval, colleges erupt, and on Friday, May 1, students at Kent hold a ceremony at the Victory Bell to bury the Constitution Nixon has murdered:

      (Mimeographed flyer :-)

      Help us . . . . .


      President Nixon has flagrantly violated our constitutional rights by invading a sovereign nation without a declaration of war by Congress. Nixon has garnered all governmental power to the executive and committed us to a course of national barbarity; a crime that we will never be able to shed. He has been motivated only by his own personal whims. He has neither consulted Congress or the citizens of the United States. In essence he has usurped power in a fashion not dissimilar to a coup d’etat. President Nixon has murdered the Constitution and made a mockery of his claims to represent law and order. In recognition of the decesased we will commit the Constitution to the earth at . . .

      12:00 NOON TODAY


      Bring on da National Guard, bring on da funk,

      bring on Monday, May 4, 1970, where the National Guard shoots into a crowd of unarmed students and kills 4, wounds 9. It looked like this:


      Good thing the Constitution was already buried so it didn’t have to see what happened to Freedom of Assembly.

  4. behindthefall says:

    commenting is enabled from XP/Safari

    Is it just me? Do there seem to be fewer comments the last several days? Does this have anything to do with the fact that I am not able to comment using my favorite browser, Opera, any longer? Is this blocking other readers, too, and perhaps more broadly on more (i.e., all) browsers? Even if it’s just Opera that’s being discriminated against, why should that be? What code changed?