Jack Goldsmith Declares Victory … for Osama bin Laden
Yesterday, Jack Goldsmith misread a crabby Harold Koh defense of Obama’s ISIL escalation justification as the end to the end to the Forever War.
Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important. It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF). Koh’s defense is nonetheless important because it definitively reveals the death of the Obama administration’s ambition to end what Koh has described as “the Forever War.”
As I said, I think this is a misreading of Koh. Koh still clings to the notion that a Congress ducking legislative action for many reasons — almost none of which have to do with electoral pressure in the short term, and many of which have to do with the fact the President has given them the luxury of dodging responsibility for what will almost certainly be an unpopular and probably unsuccessful escalation — will provide the President a more appropriate authorization for his escalation later this year.
Achieving a better outcome is not politically impossible. Representative Adam Schiff’s proposed AUMF, for example, would accomplish in one bill three of the four steps described above. It would (1) authorize “all necessary and appropriate force against ISIL” for eighteen months, limited geographically to Iraq and Syria and operationally to no US ground forces; (2) repeal the 2002 Iraq AUMF now and (3) repeal the 2001 al-Qaeda AUMF in eighteen months. If the President openly backed such legislation, it would place his war with ISIL on a much firmer legal ground, while advancing his longer-term objective—announced in 2013 at the National Defense University —of taking us off a permanent war footing.
This President came to office to end war. But he just declared a new one, sparing Congress of its constitutional responsibility to back him. Instead of breaking the vicious cycle, and asking Congress to live up to its constitutional duties to confront the Islamic State, the President prolonged a dysfunctional historical pattern that is inconsistent with the design of our National Security Constitution. As the conflict with ISIL stretches on, pressure will build to send advisers and other boots on the ground to further the goal of destroying ISIL. Americans and the world will grow weary and forget the exigencies that led this President to take this course.
There is still time to avoid this vicious cycle. When Congress returns, some will be lame ducks, and for all, the next election will be at least two years off. If members of Congress seriously care about their prerogatives, they will have no excuse for again ducking their constitutional responsibility. And this President will have those same years to consider what his constitutional legacy will be. History will treat this President far better if he leaves office not just having fought the Islamic State, but having lived up to his promise to put us on the path toward ending the Forever War.
That is, Koh still clings to the fantasy that the President will agree to limit his own authority when Congress won’t force him to do so.
Goldsmith, on the other hand, presents Koh’s painful somersaults as endorsement of the notion that Islamic extremism will remain a threat for the foreseeable future, and therefore Congress may finally replace the 2001 AUMF with something that better authorizes Forever War for the long haul.
I always thought the debates about what to do with the 2001 AUMF – repeal it, let the President interpret it flexibly, or replace it with a more rigorous updated authorization – turned on intuitions about the persistence and danger posed by Islamist terrorists. It is now clear that the Islamist terrorist threat is not dissipating anytime soon. It is also clear that the President’s interpretation of the 2001 AUMF to fight this threat, whether lawful or not, is certainly a stretch, even on Koh’s account. It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis. So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF.
For Koh, this is a choice between a legally defensible (in the short term) justification, and more legally justifiable way to bring the Forever War to a close. For Goldsmith, however, the choice is between a legally suspect justification for the Forever War, and a more defensible justification for the Forever War.
Forever War or Forever War.
Whichever you choose, the President will retain the authority to override limits on domestic spying (written by … Jack Goldsmith!), to override due process to drone-kill American citizens, to indefinitely detain men who were sold for a bounty, and to train and arm men we’ve given cause to loathe us. From time to time, Congress will be called on to stir itself from suckling, Matrix-like, on its Defense Contractor cash to approve funds and expand immunities. The fight Osama bin Laden started will continue to rot our government and Constitution. “They hate us for our freedoms,” they used to say, and now our experts embrace indefinitely signing away those freedoms in increasing bits, via legally suspect means or legally defensible.
All the while, this Forever War will suck up money that should be spent funding things like education and infrastructure, things that used to sustain America’s vitality. And the constant threat inflation needed to justify this Forever War will distract from far more pressing threats, like climate change and Ebola and reckless banksters.
Perhaps the only thing that hasn’t worked as OBL wanted is that America’s refusal to deal with climate change will kill devout Muslims in far greater numbers, at first, than it will Americans.
Institutionalizing the Forever War might as well be declaring victory for OBL.
The most telling part of this exchange, though, is how Koh, after having referred to a bunch of fellow law professor critics as “commentators,” then called law professor Mary Ellen O’Connell, writing for a publication with greater reach and news credibility than the legal blog Just Security that Koh was writing in, “the blogosphere.”
Despite ISIL’s well-publicized rift with al-Qaeda, the administration’s one-paragraph legal justification claimed not that ISIL is a co-belligerent of al-Qaeda, but that it is effectively a “successor” to Osama bin Laden’s al-Qaeda. When this claim was derided by arange of commentators (e.g., Bruce Ackerman, Noah Feldman, Jack Goldsmith, Deborah Pearlstein, and Jonathan Turley), the administration confided to theTimes that a different statute—the 2002 Iraq AUMF—also provided statutory authority for military action.
[snip]
Thus, as of Sept. 23, when the administration notified Congress of significant strikes inside Syria against ISIL and the Khorasan Group under the War Powers Resolution, it had become conventional wisdom in some parts of the blogosphere that the conflict with ISIL is illegal.
[snip]
Yet even as the blogosphere churned, both the House and the Senate gave limited “buy-in” to the President by passing statutory provisions to fund training and equipping of moderate Syrian rebels before adjourning to campaign for re-election.
8 years after Time made bloggers Person of the Year, such digs are usually deployed to dismiss arguments for which you have no response. And the main thrust of O’Connell’s piece (aside from that Obama’s justification is “highly questionable,” which accords with the conclusions of a number of other lawyers) is that this war is not not working and that’s partly because violent force wielded in legally suspect ways is not the solution for terrorism.
The United States has used unlawful force persistently since 9/11. Rather than stem terrorism, it exacerbates it. In February, U.S. Sen. James Inhofe (R-Okla.) asked the Director of National Intelligence James Clapper, “Is al Qaeda on the run and on the path to defeat?” The answer: “No, it is morphing and — and franchising itself and not only here but other areas of the world.”
[snip]
The crisis in Iraq today is the tragic aftermath of the unlawful 2003 invasion. U.S. and British forces remained for eight years; trillions were spent. The predictions for the aftermath of years fighting in Afghanistan’s civil war and untold sums spent are much the same. Social science research shows that violent outside intervention is unlikely to result in stability. International law principles track the social science: Emergency aid to civilians is always lawful; the use of military force hardly ever is. And yet, here is this president, prepared to make the same mistake as his predecessor.
Perhaps the greatest failure of America’s decades of unlawful force: We think there are no other options.
We have been playing whack-a-mole with overpriced hammers for 13 years, and all we’ve achieved is destabilizing most of the Middle East. (I’d add that this is due, in part, to covert operations with untrustworthy partners like the Saudis and Qataris, who have been feeding Sunni extremism even as they get us to hunt down rivals to their regional hegemony, which is a separate but related problem.)
This debate about the questionable legality of Obama’s ISIL escalation has been nice. But it largely distracts from the discussion of how unsuccessful 13 years of war has been at combatting Islamic terrorism, not to mention how it has corrupted American governance and sapped our strength.
We’re getting deeper and deeper in a pit opened for us by Osama bin Laden, and rather than stop digging, we’re fighting over the most legally sound way to accelerate the digging.
It’s time to reassess — both what best serves America’s “security,” writ large, and how best to respond to terrorism.
Agree 100%. And along the lines of “everything old is new again”, I would note that Pete Seeger said it well, and almost sixty years ago now: “When will they ever learn”?
Similarly, here’s a nice read from Tom Engelhardt about how 13 years of “Intelligence” work has been not only useless but counterproductive, and yet the IC still continues to grow.
http://www.tomdispatch.com/post/175901/tomgram%3A_engelhardt%2C_entering_the_intelligence_labyrinth/
point 1 – dr. goldsmith should in regard to all public comments he makes be. addressed as herr doktor republican goldsmith. nothing he writes indicates he is other than a republican partisan (and earnest excuser of his legal follies and personal and professional cowardice).
point 2 – the “blogosphere – ugly sounding, slovenly term – is not primarily for the purpose of bringing about change. it’s purpose is to allow the expression of ideas and viewpoints that would never be allowed to breath the breath of life in the world of american corporate media.
Disagree abt Goldsmith.
I don’t think he’s primarily a partisan, and he does think fairly independently. I respect that, even if I often disagree with him.
His view on war may well be motivated by his past as a DOD/OLC lawyer, but I find Koh’s views to be more dishonest and hackish than Goldsmith’s.
point 3 (from above) – i don’t see any compelling reason why the isis campaign is a threat to the u.s. or, at least, i see zero skepticism that it might not be such a big deal for the u.s. if tis (these “wars” are generated and financed by middle easter nations let them fight it out and suffer the consequences.
nor do i see any compelling reason why radical muslimism should be a threat to the u.s. mainlannd outside of the odd bombing.
what is it really that we are fighting anew in iraq. why just our old failures. why did obama go back? for domestic political reasons.
we are NOT safer fighting more middle east “wars”.
ew “… for Koh, this is a choice between a legally defensible (in the short term) justification, and more legally justifiable way to bring the Forever War to a close. For Goldsmith, however, the choice is between a legally suspect justification for the Forever War, and a more defensible justification for the Forever War.”
goldsmith “… It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis. So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF…”
a “forever war” seems like a republican preference, not a democratic one.
in any event goldsmith is criticizing a democrat prez’s policy in the guise of debating proper legal approaches to war. i would have been impressed if his critique had ended, get rid of aumf’s. they’re a congressional fig that can and has been put to much bad use by nat sec bureaucrats.
Fascinating that all these constitutional authorities, who all at one time or another swore an oath whose central tenet is protection of the Constitution above all else, care more about protecting Forever War than they do the Constitution and its Separation of Powers.
“It’s time to reassess — both what best serves America’s ‘security,’ writ large, and how best to respond to terrorism.”
I’m increasingly convinced that this will never happen. The time to reassess was decades ago and the elite consensus — dominate the world through force and plan ahead no more than five minutes — is ever more entrenched by the day, now with the imprimatur of the farthest left chief executive that our system will countenance. The madness won’t stop until the U.S. tumbles of its own inertia into second-rate power status.
for me it’s not so much a Forever War, but rather an advertisement for war machinery. allies, after all, need the latest aircraft, weapons and weaponry in order to defend themselves for those who are or may be enemies. this middle east Forever War in addition to showing off fancy new weapons and giving u.s. police more used weapons functions as a distraction from the real war. and that is The War on Drugs. defeat in this war would mean the end of the Petrochemical monopoly. and thus economic disaster.
We are concentrating on national law here to the disadvantage of international law.
.
First comes the UN Charter, which some hard-working people developed as an ALTERNATIVE to national decision-making for war. Domestic law becomes irrelevant if it violates international law, or it should, in regards wo war-making.
.
UN Charter
To maintain international peace and security,
# All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
# All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
.
Does anyone in government ever say: This violates the UN Charter? No way. In fact Bush openly dissed the UN going into Iraq, and Obama openly exceeded the UN Resolution in Libya, going from no-fly-zone to regime change.
.
Besides the UN charter, still thinking international, there are treaties, or there used to be treaties. The “US” is now NOT the US but the president. Let’s look at treaties done recently by the president without the advice and consent of the Senate as required by the Constitution.
.
Iraq: The Strategic Framework Agreement negotiated in secret by Bush-43 included: “Providing security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace.” This agreement, or treaty, has had zero public influence upon recent US military activities in Iraq.
.
Afghanistan: The “SECURITY AND DEFENSE COOPERATION AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE ISLAMIC REPUBLIC OF AFGHANISTAN” negotiated in secret by Obama was recently signed in Kabul, according to news reports. Good luck in finding a transcript of what they signed. We hear references to “safe havens” and “al-Qaeda affiliates in Afghanistan, where General Dunford said there are about 75 al-Qeda.
.
So US presidential actions are not only extra-legal domestically but also internationally, and this to me is the more important arena. Suppose every armed nation acted like the US, with poorly constructed treaties and in violation of the UN Charter?
Among the first victims of any war is an attempt to suppress all opposition to the war and various attempts to streamline the decision-making process to avoid “needless rigmarole”. In practical terms that means having the executive branch make all the decisions and leaving Congress on the sidelines. That explains why a “forever war” will inevitably lead to tyranny. If that is not enough, wars encourage corruption on a massive scale and skew the priorities of society. We see evidence of that everywhere if we want to look. MIC pisses away billions on roads in Afghanistan that are crumbling without Congress raising its voice while it refuses to properly fund highway and mass transit projects in our own country to save money. When you have a power grab by the executive combined with massive corruption that results in financial and electoral benefit to elected congressmen, you have the ingredients for a dysfunctional government that will lead to popular demands for a strong man to bring results. When a cancer is eating at society, you only put an end to it by putting a spike through it, not by nibbling at the edge like Mr. Goldsmith does. Americans have had to face up to this problem before. During Eisenhower’s first term (and after the Army McCarthy hearings), Congress finally screwed up the courage to censure Senator McCarthy and end his demagoguery on the Communist menace. President Harding also signaled the “Return to Normalcy” after the Great War when he pardoned Eugene Debs and invited him to the White House.
At least two dynamics contribute mightily to this: First, there’s the ongoing burying of the material facts on which the government has acted since 2001. This means we never learn because we never insist on knowing in order to understand how we got to where we are. Small wonder the Executive acts as he does; there’s never a downside consequence. Second, there’s the consensus (theatrical partisan quibbling aside) between Congress and the Executive on the use of military force; virtually everybody’s up for bombing things, if only to give themselves the feeling that the US is doing SOMETHING. Both dynamics highlight how law itself has become marginalized into parody, turned over to legal clerks to shoe-horn lame facts (if facts is even what they are) into a legal rationale that’s nothing more than the-king’s-always-right. It’s also worth mentioning that the absence–for the time being–of a counter-weight in global power means that there’s no one to save us from our own follies.
Wait? What?
I haven’t kept up on his thoughts to really know what he means, but is he actually saying that Zero, or any pResident after him can continue this war under article two?
.
So, they can just blow off article one?
.
.
http://press-pubs.uchicago.edu/founders/tocs/a1_8_11.html
.
Maybe not him, but, many people, and especially SCOTUS go on and on about original intent as basis for turning the gov more and more to the right. And in this case, original intent is pretty clear, against giving the executive power to make war
.
.
Am I wrong?
Here’s the link for the last two blockquotes
.
http://avalon.law.yale.edu/18th_century/debates_817.asp
That’s part of my point. THe assumption is this will go on whether under II or I. Right now it’s really going on under II, but Obama keeps throwing I at them to keep them placated.
Hate not having preview and edit
.
I brought up original intent and how the righties always bring it up because a conservative perspective seems to be the only way to get through to the people in DC
They only like ‘original intent’ when it agrees with what they already want to do. See, for example, Scalia’s statements on religion, which ought to be enough to get him impeached or asked to resign.
Article II goes nowhere near giving the president authority to initiate military action anywhere. That is the Congress’s authority.
.
Article II. – The Executive Branch
Section 1 – The President
The executive Power shall be vested in a President of the United States of America.
Section 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States
.
Who calls the military into service?
Back to Article I
Section 8 – Powers of Congress
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
.
As you can see, the FF didn’t envision a standing army for a term over two years.
Navy — that’s different. We always need a Navy sailing around contiguous seas.
Oh, one more thing
The Packers SUCK! Go Vikings! ;-) JK
Honestly, there’s about one chance in hundred that the Vikings win, but there’s always a chance
No Kemosabe, there is no chance in hell.
.
Maybe if the Vikes would have brought the ‘Ole Geezer Gunslinger Favre out of retirement instead of going to Bridgewater and Ponder, there would have been a chance.
.
Not now. Sorry. Heck, even Julius Peppers is looking like Charles Woodson with the Vikes on the other side.
quote”Oh, one more thing
The Packers SUCK! Go Vikings! ;-) JK”unquote
priceless. An entree of power to declare war and a Football team shoutout dessert…all on the same plate. Only in the DCOTP.
bartender…a shot of DoubleFace palm… er..on second thought.. leave the bottle.