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Jack Goldsmith, Open Source OLC Lawyer, to Obama: You’re Breaking the Law

Eleven days ago, Senate Intelligence Committee member Ron Wyden sent a publicly released letter to John Brennan making two things clear:

  • The Administration has refused to tell grunt (that is, non-Gang of Four) members of the Senate Intelligence Committee whether its targeted killing program–extending even to the killing of US citizens–is authorized under Article II or AUMF power.
  • The Administration has refused to tell grunt members of the Senate Intelligence Committee which countries it uses “lethal counterterrorism authorities” in.

Nine days later, Jack Goldsmith, a man best known for going to some length to force a President to have credible legal justifications for his counterterrorism programs, wrote this column, offering his advice about “What to do about growing extra-AUMF threats?”

Mind you, Goldsmith is addressing the legal problem presented by (and explaining his column by pointing to) our fight against AQIM in North Africa and al-Nusra in Syria. He is not pointing–at least not explicitly–to the troubling revelations of Wyden’s letter.

But Goldsmith’s advice is directly relevant to the topics on which the Administration refuses to brief the grunt Senate Intelligence Committee members. Goldsmith warns that Article II power–on which it increasingly appears the Administration is relying–doesn’t extend as far as AUMF authority would.

One possibility is to rely on the president’s independent Article II power, which authorizes the president to use force, in the absence of congressional authorization, in defense of the nation. This approach faces at least three problems.  First, it is a fraught basis for action because the president must act without the overt support of Congress, which can later snipe at his decisions, or worse.  Relatedly, courts are more inclined to uphold presidential action supported by Congress.  Second, the scope of Article II targeting authorities is less certain than the scope of AUMF targeting authorities, and might be narrower. [my emphasis]

And Goldsmith describes the importance of telling Congress–and he’s talking about telling all of Congress, not just grunt Senate Intelligence Committee members–what groups are actually included among legal counterterrorism targets.

Congress could authorize the President to use force against specified terrorist groups in specified countries (or perhaps just against particular groups without specifying nations).  The Wall Street Journal recently reported that some in the administration are considering asking Congress for just such a statute to address Islamist terrorist threats in some North African countries.  This retail approach is in theory the best option because Congress defines the enemy, and because Congress stays in the loop politically and legally and must debate and approve any expansions of the conflict. The problem with the retail approach is that it is unclear whether Congress can or will, on a continuing basis, authorize force quickly or robustly enough to meet the ever-morphing threat.

Third, Congress could set forth general statutory criteria for presidential uses of force against new terrorist threats but require the executive branch, through an administrative process, to identify particular groups that are targetable.  One model here is the State Department’s “Foreign Terrorist Organization” designation process.  There are at least two problems with this approach.  First, it is unclear whether Congress may constitutionally delegate the war power in this fashion.  And second, it lessens congressional involvement and accountability as compared to the second approach. [my emphasis]

Now, let me be clear: Goldsmith never comes out and directly says that the Obama Administration is, currently, breaking the law (and he makes no comment on whether the Administration is violating National Security Act requirements on briefing Congress). And if he did, he’d probably couch it in language about needing the cover of Congressional sanction–more language about Congress “sniping, or worse.” Nevertheless, the clear implication if you take Wyden’s letter in conjunction with Goldsmith’s Office of Legal Counsel-type advice is that the Obama Administration is conducting counterterrorism ops without legal sanction.

But consider what it means that this solidly conservative lawyer is telling the Obama Administration the same thing he had to tell George Bush when the latter relied on John Yoo’s crappy legal advice.

This suggests that the administration will continue to rely as much as possible on an expansive interpretation of the AUMF and on Article II.  We will see if these authorities suffice to meet the threat.

When Jim Comey, in response Goldsmith’s advice, dramatically stood up to Andy Card and Alberto Gonzales’ bullying in a DC Intensive Care Unit, he did so to convey to them that an “expansive interpretation” of Article II power was not good enough (though according to Tom Daschle’s read of the AUMF discussions, Goldsmith replaced John Yoo’s expansive interpretation of Article II authority with an expansive interpretation of the AUMF).

Goldsmith’s advice, writing without the authority he once had as the confirmed OLC head, and lacking the leverage of an expiring wiretapping authorization or the imposing figure of a 6’8″ Acting Attorney General to deliver his message, may not carry the weight it once did.

But he is offering fundamentally the same warning he did 9 years ago.

Update: This post has been updated for clarity.

Wiretapping Your Business Records: The White House Doesn’t Want You To Be Confused

Sadly, whoever liberated the White House talking points on the FISA Amendments Act extension didn’t get them to TechDirt until after most of the so-called debate was over.

Particularly given this explanation for why the White House opposed Pat Leahy’s efforts to shorten the extension to three years, which would have made the next extension coincide with the PATRIOT Act extension that will be debated in the year before a Presidential election.

Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.

TechDirt suggested the White House thinks Congress is stupid.

Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they’re confused by those issues, then they shouldn’t be in this job. Period.

But I think this talking point is far more telling. Because, in fact, there is a great deal of circumstantial evidence that FAA and one of the three things that will be up for extension in 2015–Section 215–are not at all distinct.

Section 215, remember, is the “Business Records” provision that allows the government to get any tangible thing that is relevant to a national security investigation. We know Section 215 has been used to collect records of acetone and hydrogen peroxide purchases, and there’s abundant reason to believe the government has used Section 215 to get cell geolocation data.

Moreover, Ron Wyden and Mark Udall have pointed to Section 215 as part of the “secret law” they’ve been complaining about, even while they also point to FISA Court opinions tied to that “secret law.”

Historically, too, there seems to be a chronological tie. In the weeks after the May 11, 2004 hospital confrontation, Cheney had a secret meeting with just Robert Mueller; FBI started bypassing DOJ’s Office of Intelligence Policy Review to get Section 215 orders; and FBI obtained its first ever Section 215 order. Then, in the months after the revelation of the illegal program in 2005 (and during that year’s debate on PATRIOT renewal), the government used Section 215 to get subscriber information on trap and trace orders.

In other words, it seems possible that in response to Jim Comey and Jack Goldsmith’s efforts to stop the data mining of US person call records collected without any legal basis, the government started collecting call records under FBI orders to accomplish the same result and they repeatedly turned to Section 215 to provide legal cover for the illegal collection they refused to stop.

In fact, (I’m trying to track this down) Jeff Merkley made a speech on Thursday that invoked the Section 215 relevance standard at one point, not the FAA foreign standard. So Merkley, at least, does seem to think there’s a tie between Section 215 and FAA.

It seems, then, that the White House was (surprise!) being totally disingenuous with its purported worry that people would conflate the warrantless wiretap program with the collection it conducts using Section 215. More likely, they were worried that having these debates at the same time would make it more obvious that they’re conducting part of their warrantless surveillance program under FAA, and part of it under Section 215.

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Dick Durbin: The Targeted Killing Memo Is Like the Torture and Illegal Wiretap Memos

It took transcribing the debate in the July 19 Senate Judiciary Committee hearing for me to realize it, but Democrats are running very serious interference to keep the Anwar al-Awlaki targeted killing memo secret. Not only did Dianne Feinstein basically roll John Cornyn, telling him she’d introduce language that would accomplish his goal of getting all the oversight committees the memo when, if hers passes, it will only, maybe, get the Intelligence Committee the memo.  Not only did the Democrats vote on a party line vote to table John Cornyn’s amendment to require the Administration to share it–in classified or unclassified form–with the Judiciary and Armed Services Committees. Not only did Pat Leahy get pretty snippy with Cornyn for offering–and asking to speak on–the Amendment.

Most stunning, though, is Dick Durbin’s comment on it.

Durbin: Thank you Mr. Chairman. My staff briefed me of this on the way in, and I asked the basic question, “would I ask this of a Republican President? Of course. And I did ask it, in a different context, of the previous President, when it came to questions of interrogation, torture, and surveillance. I might say to the Senator from Texas I had no support from the other side of the table when I made that request. But I do believe it is a valid inquiry and I would join the Senator from Texas and any who wish in sending a letter to the Attorney General asking for this specific information on a bipartisan basis. And certainly we can raise it the next time the Attorney General appears before us. I do have to say that I’m going to vote to table because I think that as flawed as this [the FAA extension] may be without the Lee Amendment which I think would help it, I do believe we need to pass this and  bringing in these other matters are going to jeopardize it. But I think it is a legitimate question to be asked of Presidents of either party, and I will join you in a letter to this President and his Attorney General for that purpose. [my emphasis]

This partisan retort (one Leahy repeated) says, in part, that the Democrats aren’t going to cooperate with Cornyn’s effort to get the memo because Cornyn didn’t cooperate with Durbin’s efforts to get the torture and illegal wiretap memos. Durbin and Leahy are right: Cornyn and the rest of the Republican party did obstruct their efforts.

That doesn’t make obstructing Cornyn’s effort right, of course, particularly given that Durbin purports to support Cornyn’s intent.

But remember, Republicans obstructed the release of the torture and illegal wiretap memos because, well, they showed the Executive had broken the law. When we all got to see the torture memos, they made it clear CIA had lied to DOJ to get authorization for torture, had exceeded the authorizations given to them, had engaged in previously unimagined amounts of torture, and had ignored legal precedent to justify it all.

And while we’ve only ever seen part of Jack Goldsmith’s illegal wiretap memo (after the Bush Administration purportedly fixed the data mining and other illegal problems with it) and a teeny fragment of an earlier John Yoo memo, those showed that Yoo relied on gutting the Fourth Amendment, there is an additional secret memo on information sharing, they were hiding their flouting of the exclusivity provision, and–possibly–the illegal wiretap program violated an earlier decision from the FISA Court of Review. We also learned, through some Sheldon Whitehouse persistence, that these memos revealed the President had been pixie dusting Executive Orders and claiming the right to interpret the law for the Executive Branch.

The Republicans had good reason to want to help Bush bury these memos, because they showed breathtaking efforts on the part of the Bush Administration to evade the law.

And that’s the fight that Dick Durbin analogized this one to.

The “Most Transparent Administration Ever” Treats Recess Appointments with Greater Secrecy than Illegal Wiretapping

Charlie Savage just released the OLC opinion he got in response to a FOIA on opinions relating to recess appointments (this became an issue after Obama appointed Richard Cordray head of the Consumer Financial Protection Board using a recess appointment). It is a Jack Goldsmith memo dated February 20, 2004.

It is almost entirely redacted. Just 11 lines out of three pages are left unredacted–and one of those reads, “Please let us know if we may be of further assistance.”

Just for shits and giggles, I compared that memo to another Jack Goldsmith memo, one that relates to actual national security issues: Goldsmith’s May 6, 2004 memo finding the revamped illegal wiretap program legal. That’s a 108 page memo, of which 46 pages are entirely redacted or redacted to the same degree as any one of the three pages in this recess appointment one. There are a slew more redactions, many of them obviously improper.

The last line, “Please let me know if we can be of further assistance. (U)” appears unredacted there, too.

Nevertheless, the Administration redacted far more of the earlier Goldsmith memo–the recess appointment one–than the one dealing with one of our most sensitive counterterrorism programs.

Next up, the Administration is going to start redacting Civics textbooks, because the workings of government are so terribly sensitive.

Glomar and CIA’s Propagandistic Campaign of Sanctioned Leaks

The ACLU submits briefs.

In response to Plaintiffs’ January 2010 request under the Freedom of Information Act, the CIA asserted that its use (or non-use) of drones to carry out targeted killings was a “classified fact.” The assertion was far-fetched then, but it is fantastical now.

[snip]

… allowing the CIA to deny the existence of the drone program while it carries on a propagandistic campaign of officially sanctioned leaks would make a mockery of the classification system.

[snip]

Indeed, the Court should approach the CIA’s arguments here with special skepticism, because the volume and consistency of media leaks relating to the CIA’s drone program strongly suggest that the government is relying on the Glomar doctrine in this Court while government officials at the same time, under cover of anonymity, disclose selected information about the program to the media. This kind of campaign of selective disclosure is precisely what FOIA was enacted to prevent.

As you can imagine, the filing makes liberal use of Jack Goldsmith’s post from the other day.

Here’s the nut of it:

The FOIA’s particular concern with selective disclosure should inform this Court’s analysis here. The Glomar doctrine cannot be construed so broadly, or the official acknowledgment exception so narrowly, as to license the very “selective disclosures, managed news, half-truths, and admitted distortions” that the FOIA was meant to preclude. For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent. This Court should vacate the judgment below and order the CIA to process Plaintiffs’ FOIA request.

Jack Goldsmith to John Brennan: Not Good Enough

When he gave a speech to make misleading claims about the drone program, John Brennan claimed his speech fulfilled Jack Goldsmith’s demand for more transparency.

Jack Goldsmith, a former assistant attorney general in the administration of George W. Bush and now a professor at Harvard Law School, captured the situation well.  He wrote:

“The government needs a way to credibly convey to the public that its decisions about who is being targeted, especially when the target is a U.S. citizen, are sound. First, the government can and should tell us more about the process by which it reaches its high-value targeting decisions. The more the government tells us about the eyeballs on the issue and the robustness of the process, the more credible will be its claims about the accuracy of its factual determinations and the soundness of its legal ones.  All of this information can be disclosed in some form without endangering critical intelligence.”

Well, President Obama agrees.  And that is why I am here today.

In response to Brennan’s speech, Goldsmith wrote a mostly-approving post, deeming Brennan’s speech to have fulfilled his call for more transparency.

Brennan’s speech, taken together with earlier speeches on related topics by top government officials, strikes me as meeting if not exceeding the administration’s “good government” duty to explain to the American people the legality and justification for and operation of its targeted killing program.

But in the wake of the NYT and Daily Beast pieces, Goldsmith has intensified a criticism he made in the earlier post: in the face of all this sanctioned leaking, Goldsmith argues, the Administration should not be able to sustain their Glomar invocation in ACLU’s FOIA suits.

The story and the excerpt are based on interviews with dozens of current and former Obama advisors.  They contain fine-grained details about the CIA’s involvement in drone strikes, internal USG processes and deliberations concerning the CIA strikes, internal USG criticisms and defenses of the CIA strikes, and the consequences of the CIA strikes. At the same time that many officials are talking to Becker and Shane and Klaidman about the CIA drone strikes in the hope that the journalists will report what they say, the USG maintains that the CIA can neither confirm nor deny that it has responsive records about its involvement in drone strikes.  The USG’s position is that such a Glomar response is appropriate because there has been no official acknowledgment of CIA involvement in drone strikes, and “whether or not the CIA was involved in drone strike operations . . . is a classified fact.”

He argues that, given all the leaks, the DC Circuit should rule against the government’s Glomar invocation.

The basic question before the CADC is whether this rationale applies to the CIA program.  There are actually at least two questions here: (1) Has the USG officially acknowledged CIA drone strikes?; and (2) Even if the USG has not officially acknowledged CIA involvement in the strikes, should it be required to do so in light of its manipulation of the secrecy system through extensive opportunistic leaks?  On both issues I find myself increasingly in the ACLU camp.

[snip]

I increasingly believe there must be some limit.  Protecting the credibility of foreign governments in places where dangerous terrorists lurk is a relative value, not an absolute one; and at some point a government that consistently and extensively leaks information about covert action should lose the protections of Glomar, even if the purposeful leaks do not amount to official acknowledgment.

While I of course agree that the government shouldn’t be able to claim all the stuff they’re willingly revealing is still classified, I’d like to push something Goldsmith says one step further. He entertains the counter-argument the government might make–that leaking wildly while preserving Glomar provides a kind of accountability–but predicts a narrowing of Glomar won’t hurt this dynamic.

One argument in favor of the government’s practice of leaking information about CIA drone strikes while at the same time insisting on (and receiving) full Glomar protection in FOIA cases is that the system allows the USG to tell the American public about what it is up to while at the same time preserving diplomatic confidences.  In other words, leaks about the CIA drone program can be seen as a democratic-accountability-promoting compromise.  Setting aside that government leaks inevitably serve the interests of the leaker, this argument entails that if the Glomar rationale is narrowed as a result of leaks, the consequence in the next round of covert programs will be less government disclosure through leaks and thus less government accountability.  This is an important argument that underscores the complexities in this area.  I am skeptical, however, because I think he government will continue to leak for multiple self-serving reasons, even if Glomar is narrowed in the covert action context.

Goldsmith admits that these leaks are self-serving. But they are also something else.

Regarding the central issue of the decision-making process Goldsmith emphasized, false.

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Eric Holder Suggests Scary Iran Plot Was Legal

I’m sure that Eric Holder didn’t mean to suggest that the assassination plots purportedly planned by Iran’s Quds Force and Manssor Arbabsiar with the assistance of a DEA informant targeting the Saudi Ambassador to the US, Adel al-Jubeir, as well as Israeli and Saudi figures in Argentina, are legal.

But given the debate between the ACLU’s Anthony Romero and Jack Goldsmith over whether assassinations in this country would be legal, I wanted to look at what he did say.

In their debate on WBUR’s On Point, Romero said something to the effect of Holder’s argument for targeted killing would serve as justification for other countries to target their own “terrorists” in our country. Goldsmith objected, saying such assassinations would only be legal in failed states (implicitly, like Yemen and Pakistan) where a state was unable to apprehend such a figure.

That’s not what Holder said. Here’s what he did say:

Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.   Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.   International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.  [my emphasis]

Strip this passage of its American exceptionalism, and here’s what it justifies: Read more

Drone War Secrecy and Kill or Capture

As we stand on the doorstep of President Obama signing into law the new NDAA and its dreaded controversial provisions, there are two new articles out of interest this morning. The first is an incredibly useful, and pretty thorough, synopsis at Lawfare of the new NDAA entitled “NDAA FAQ: A Guide for the Perplexed”. It is co-written by Ben Wittes and Bobby Chesney and, though I may differ slightly in a couple of areas, it is not by much and their primer is extremely useful. I suggest it highly, and it has condensed a lot of material into an easily digestible blog length post.

The second is a long read from the Washington Post on how secrecy defines Obama’s drone wars:

The administration has said that its covert, targeted killings with remote-controlled aircraft in Pakistan, Yemen, Somalia and potentially beyond are proper under both domestic and international law. It has said that the targets are chosen under strict criteria, with rigorous internal oversight.
….
“They’ve based it on the personal legitimacy of [President] Obama — the ‘trust me’ concept,” Anderson said. “That’s not a viable concept for a president going forward.”

The article goes on to state how the CIA, and the majority of voices in the White House, are fighting tooth and nail for continued utmost secrecy lest any of our enemies somehow discover we are blowing them to bits with our drones. This is, of course, entirely predictable, especially now that the former head of the CIA leads the military and the former military chief for the greater Af/Pak theater which has long been ground zero for the drone kill program, Petraeus, is the head of the CIA.

But then the Post piece brings up our old friend, the OLC:

The Justice Department’s Office of Legal Counsel has opposed the declassification of any portion of its opinion justifying the targeted killing of U.S. citizen Anwar al-Awlaki in Yemen this year. Awlaki, a propagandist for the Yemen-based al-Qaeda affiliate whom Obama identified as its “external operations” chief, was the first American known to have been the main target of a drone strike. While officials say they did not require special permission to kill him, the administration apparently felt it would be prudent to spell out its legal rationale.
….
Under domestic law, the administration considers all three to be covered by the Authorization for Use of Military Force that Congress passed days after the Sept. 11, 2001, attacks. In two key sentences that have no expiration date, the AUMF gives the president sole power to use “all necessary and appropriate force” against nations, groups or persons who committed or aided the attacks, and to prevent future attacks.

The CIA has separate legal authority to conduct counterterrorism operations under a secret presidential order, or finding, first signed by President Ronald Reagan more than two decades ago. In 1998, President Bill Clinton signed an amendment, called a Memorandum of Notification, overriding a long-standing ban on CIA assassinations overseas and allowing “lethal” counterterrorism actions against a short list of named targets, including Osama bin Laden and his top lieutenants. Killing was approved only if capture was not deemed “feasible.”

A week after the Sept. 11 attacks, the Bush administration amended the finding again, dropping the list of named targets and the caveat on “feasible” capture.

“All of that conditional language was not included,” said a former Bush administration official involved in those decisions. “This was straight-out legal authority. . . . By design, it was written as broadly as possible.”

This brings us back to the notable October 8, 2011 article by the New York Times’ Charlie Savage on his viewing of the Awlaki targeting memo relied on by the Obama White House for the extrajudicial execution of Anwar al-Awlaki. Marcy, at the time discussed the incongruity of the collateral damage issue and the fact Samir Khan was also a kill in the targeted Awlaki strike.

I would like to delve into a second, and equally misleading, meme that has been created by the self serving and inconsistent secret law Obama has geometrically expanded from the already deplorable Bush/Cheney policy set: the false dichotomy in the kill or capture element of the Read more

Why the Iraq AUMF Still Matters

The big headline that came out of yesterday’s American Bar Association National Security panels is that DOD General Counsel Jeh Johnson and CIA General Counsel Stephen Preston warned that US citizens could be targeted as military targets if the Executive Branch deemed them to be enemies.

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday.

[snip]

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

We knew that. Still, it’s useful to have the Constitutional Lawyer President’s top aides reconfirm that’s how they function.

But I want to point to a few other data points from yesterday’s panels (thanks to Daphne Eviatar for her great live-tweeting).

First, Johnson also said (in the context of discussions on cyberspace, I think),

Jeh Johnson: interrupting the enemy’s ability to communicate is a traditionally military activity.

Sure, it is not news that the government (or its British allies) have hacked terrorist “communications,” as when they replaced the AQAP propaganda website, “Insight,” with a cupcake recipe (never mind whether it’s effective to delay the publication of something like this for just one week).

But note what formula Johnson is using: they’ve justified blocking speech by calling it the communication of the enemy. And then apparently using Jack Goldsmith’s formulation, they have said the AUMF gives them war powers that trump existing domestic law, interrupting enemy communications is a traditional war power, and therefore the government can block the communications of anyone under one of our active AUMFs.

Johnson also scoffed at the distinction between the battlefield and the non-battlefield.

Jeh Johnson: the limits of “battlefield v. Non battlefield is a distinction that is growing stale.” But then, it’s not a global war. ?

Again, this kind of argument gets used in OLC opinions to authorize the government targeting “enemies” in our own country. On the question of “interrupting enemy communication,” for example, it would seem to rationalize shutting down US based servers.

Then, later in the day Marty Lederman (who of course has written OLC opinions broadly interpreting AUMF authorities based on the earlier Jack Goldsmith ones) acknowledged that Americans aren’t even allowed to know everyone the US considers an enemy.

Lederman: b/c of classification, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with.”

Now, as I’ve noted, one of the innovations with the Defense Authorization passed yesterday is a requirement that the Executive Branch actually brief Congress on who we’re at war with, which I take to suggest that Congress doesn’t yet necessarily know everyone who we’re in “armed conflict” with.

Which brings us to how Jack Goldsmith defined the “terrorists” whom the government could wiretap without a warrant.

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

It’s possible the definition of our enemy has expanded still further since the time Goldsmith wrote this in 2004. Note Mark Udall’s ominous invocation of “Any other statutory or constitutional authority for use of military force” that the Administration might use to authorize detaining someone. But we know that, at a minimum, the Executive Branch used the invocations of terrorists in the Iraq AUMF–which are much more generalized than the already vague definition of terrorist in the 9/11 AUMF–to say the President could use war powers against people he calls terrorists who have nothing to do with 9/11 or al Qaeda.

So consider what this legal house of cards is built on. Largely because the Bush Administration sent Ibn Sheikh al-Libi to our Egyptian allies to torture, it got to include terrorism language in an AUMF against a country that had no tie to terrorism. It then used that language on terrorism to justify ignoring domestic laws like FISA. Given Lederman’s language, we can assume the Administration is still using the Iraq AUMF in the same way Goldsmith did. And yet, in spite of the fact that the war is ending, we refuse to repeal the AUMF used to authorize this big power grab.

Mark Udall’s Unsatisfactory Solution to the Detainee Provisions

As I have repeatedly described, I have very mixed feelings about the debate over Detainee Provisions set to pass the Senate tonight or tomorrow. I view it as a fight between advocates of martial law and advocates of relatively unchecked Presidential power. And as I’ve pointed out, the SASC compromise language actually limits Presidential power as it has been interpreted in a series of secret OLC opinions.

Which is why I’m no happier with Mark Udall’s amendment than I am with any of the other options here.

On its face, Udall’s amendment looks like a reset: A request that the Executive Branch describe precisely how it sees the military should be used in detention.

SEC. 1031. REVIEW OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

(a) In General.–Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with appropriate officials in the Executive Office of the President, the Director of National Intelligence, the Secretary of State, the Secretary of Homeland Security, and the Attorney General, submit to the appropriate committees of Congress a report setting forth the following:

(1) A statement of the position of the Executive Branch on the appropriate role for the Armed Forces of the United States in the detention and prosecution of covered persons (as defined in subsection (b)).

(2) A statement and assessment of the legal authority asserted by the Executive Branch for such detention and prosecution.

(3) A statement of any existing deficiencies or anticipated deficiencies in the legal authority for such detention and prosecution.

On one hand, this seems like a fair compromise. The Republicans want something in writing, Carl Levin claims SASC met just about every demand the Administration made in its attempt to codify the authority, but in response the President still issued a veto threat. So why not ask the President to provide language codifying the authority himself?

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