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Obama Issues Veto Threat on Forever War

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The Administration just issued its official position on the House Armed Services Committee Defense Authorization bill. In it, Obama issues veto threats on several issues, including an extra engine for the Joint Strike Fighter and limits on START nuclear reductions (but not, it must be said, on any delay of DADT repeal, though he did oppose efforts to delay repeal).

Most interesting, though, is the veto threat on the forever war (see Ben Wittes for a good summary of most of these sections):

Detainee Matters:  The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards.  At a minimum, this is an issue that merits more extensive consideration before possible inclusion.  The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.  Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests.  It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.  For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence.  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.  The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur.  The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.  Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests.  It also unnecessarily interferes with DoD’s ability to manage detention operations.  Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.  If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

While I would have preferred a full-throated rejection of the forever war, this is a neat approach that, given realistic assumptions of what we can expect from Obama, pushes back in an interesting fashion.

What the Administration has done is list five different provisions:

  • 1034: redefining the AUMF to be a forever war (and also giving the President the power to detain people in the forever war)
  • 1039: barring the use of funds for civil trials
  • 1040: imposing certification requirements on the Secretary of Defense to transfer detainees
  • 1036: codifying an indefinite detention system, with fewer detainee rights than Obama’s own EO calls for
  • 1042: requiring the Attorney General ask permission from the DNI and Secretary of Defense before prosecuting “terrorist offenses” in civilian courts

And then said, generally, if “these provisions that challenge critical Executive branch authority” remain in the bill, his advisors would recommend a veto.

Of course, on its face, the forever war section doesn’t “challenge critical Executive branch authority,” unless you argue that by granting the President the ability to constantly redefine this war, you’re infringing on his authority to do so without a grant of such authority from Congress. That’s not how I understand the Constitution, but you can never be too sure anymore about the people who run our war machines.

Nevertheless, Obama is including that with a bunch of other restrictions (some of which passed in similar form on other laws, to which he responded with a non-signing statement signing statement, and some of which are new), so as to be able to say his opposition is grounded in separation of power concerns rather than the judgment that Congress shouldn’t mandate a forever war the President hasn’t asked for.

Again, I’d rather have a loud denunciation of the forever war. I’d rather have a clear argument about how we will start moving away from a war footing in our opposition to terrorism.

But I’m not going to get that, so I’ll take this graceful veto threat instead.

John Bellinger: If the War Is Illegal, Just Change the Law

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John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.