Waging Another Unconstitutional War

Saturday, June 18, 2011 by CommonDreams.org

by Ralph Nader

 

The meticulous Harvard Law Review editors should be rolling over in their footnotes. The recidivist violations of constitutional and statutory requirements by their celebrated predecessor at that journal – Barack Obama has reached Orwellian dimensions in the war against Libya.

You see, the widespread daily bombing of Libya, the strict naval blockade of Muammar Gadhafi-controlled Libya, the destruction of Gadhafi's family compound and tent encampment in the desert--killing his son and three grandchildren--and the deployment of special forces inside Libya is not a "War." It is in the Obama White House's evasive nomenclature just a "time-limited, scope-limited military action" Can you find that phrase in the Constitution?

If Obama used the word "War," he would have a more difficult time explaining to Congress and the American people (three out of four oppose this war) why he did not (1) seek a declaration of war under Article I, section 8, clause 11 of the Constitution, or (2) seek Congressional authorization for appropriated funds to further the war with our NATO co-warriors, or (3) comply with the deadlines of the War Powers Resolution. He threw all three lawful restraints on his Presidential unilateralism overboard.

So, in the invidious tradition of George W. Bush and his indentured confessor, Justice Department lawyer, John Yoo, now comfortably ensconced on the law faculty of the University of California Berkeley, Mr. Obama is blithely claiming as authority for taking our country into another war "the inherent powers of the President under Article II of the Constitution." This wouldn't pass the laugh test by Jefferson, Madison, Franklin Mason or even Hamilton. James Madison believed placing the war-declaring power in the exclusive hands of Congress was the most significant achievement during the convention in Philadelphia that summer of 1787. No more King George substitutes for America's future, they demanded.

Note that Libya did not attack the U.S. or its appendages, and did not attack a member of NATO. Obama admits these points. Libya's trusting government sovereign fund even left $37 billion in the U.S. which Obama promptly froze. Lacking even the prevaricatory pretenses for Bush's illegal invasion of Iraq in 2003, Obama and Hillary Clinton now say the U.S. is militarily involved "to protect our interests and advance our values" in the region and, of course, to protect the "universal rights" of the Libyan people. (Opportunities abound for this Obama doctrine around the world from the Congo to Syria, to Burma, to occupied Palestine and many other areas.)

Desperately seeking legitimacy, Mr. Obama cites the UN resolution, NATO, and the Arab League instead of seeking it from Congress. For all treaties with foreign countries, including the UN Charter, are trumped by the U.S. Constitution (Reid v. Covert, 354 U.S. 1 (1957)). As a former teacher of constitutional law, the President knows this basic principle but then, as Lord Acton declared: "Power corrupts and absolute power corrupts absolutely."

Congress, rendered a rubber stamp by President George W. Bush, is bestirring itself. On June 3, 2011, the House of Representatives passed H.R. Res 292 declaring that the President shall not deploy, establish, or maintain the presence of units and members of the United States Armed Forces on the ground in Libya. On this matter, Obama pleads state secrets.

On June 16, 2011, ten members of the House – five conservative Republicans (including Walter B. Jones (Rep. N.C.) and Ron Paul (Rep. Texas) and five Democrats (including Dennis Kucinich (Dem. Ohio) and John Conyers (Dem. Mich.) filed suit against President Obama in federal district court for an order declaring the U.S. war in Libya "without a declaration of Congress with the use of funds never approved for such a war" to be unconstitutional. Given past judicial decisions declaring members of Congress to have "no standing to sue" on what they call "political matters," this suit is facing an uphill barrier.

Congress has appropriated no money for this war, already costing nearly a billion dollars, nor has the lawless Obama asked for it because he knows there will be strong bi-partisan resistance.

So where is the Congress to go but to the courts to decide this internal, domestic issue affecting the separation of powers provoked by a clearly lawless President? The degraded, politicized, formerly professional, Office of Legal Counsel is a sleazy apologist for presidential overreaching for over two decades.

The expanding immunities of the Executive branch, now increasingly embracing the military contractors of the corporate state, is destroying the remaining pretensions that we are a nation under law. When he was inaugurated as President in January 2009, President Obama said he wanted his Administration to be known as one of "transparency and the rule of law." You'll recall during his 2008 campaign he trumpeted that he would obey the Constitution, inferring the the Republican regime was trampling the Rule of Law.

Indeed in 2007, then Senator Barack Obama stated that "the president does not have any power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Vice President Biden was even more vehement on this issue. And Secretary of Defense Robert Gates originally opposed the attack on Libya before falling in line.

Gadhafi's dictatorship is a brutal one. Civil wars are brutal. People are dying and suffering. The country is being torn apart. Obama and NATO are not adequately testing offers for a truce and supervised elections. Top level officials are defecting from Gadhafi and hoping to help lead any successor government.

Regimes brutalize their people whether as dictatorships, authoritarian rulers, connected with dominant oligarchies, or through racial, religious or other sectarian repressions. Is the U.S., mired in deep recession, debt and its own kleptocracy, going to continue to police the world with bases, interventions, subversions or occupation?

The cause of human rights everywhere, needs a permanent, well-quipped professional United Nations peace-keeping force and effective international courts to prevent mass massacres and mass brutalities. That time is not near but it should be at the top of the agenda of civilized nations.

The U.S., as the number one military superpower, provoking antagonisms by its penchant for control throughout the world, should not imperially advance our empire. It is that belief which is bringing Right and Left together, not just in Congress, but around the country.

Reps. Kucinich, Jones to File Suit Against Obama on Libyan War

Wednesday, June 15, 2011 by The Hill
by Pete Kasperowicz

Reps. Dennis Kucinich (D-Ohio) and Walter Jones (R-NC) on Wednesday are expected to file a complaint in federal court that is presumably related to the failure of the Obama administration to seek congressional authority for military action in Libya.

The two members are expected to announce the details of their action at noon Wednesday. Kucinich released a statement late Tuesday night that said other members of Congress would join the suit.

Both members have argued that the Obama administration has failed to seek congressional authority for Libyan military actions under the War Powers Resolution. The House earlier this month approved a resolution asking for details and justification about the intervention by the end of this week, which many believe is the deadline by which U.S. troops must withdraw, or the administration must obtain congressional approval.

House Speaker John Boehner (R-Ohio) on Tuesday warned that the administration would be in violation of the War Powers Resolution by the end of the week.

After Years of War, House Holds Votes to Check Military Action

Monday, May 30, 2011 by The Hill

by Russell Berman 

 

An increasingly war-weary House will vote this week on legislation that would halt the U.S. military intervention in Libya. The vote comes just days after lawmakers nearly approved a measure to expedite the American withdrawal from Afghanistan.

The office of Majority Leader Eric Cantor (R-Va.) said Friday the House would take up a resolution introduced by anti-war Rep. Dennis Kucinich (D-Ohio) that directs the president to remove U.S. armed forces from Libya. The liberal Democrat is acting under authority of the 1973 War Powers Resolution, which enables legislators to force a vote on troop withdrawal measures under certain conditions.

Kucinich has used the mechanism to force votes on withdrawing forces from Iraq and Afghanistan, most recently in March, but this will be the first such vote on the two-month-old Libya mission.

The measure is not expected to pass, but a significant number of votes in favor could send a sobering message to the White House, which has struggled to win congressional support for the military intervention in Libya. Both Republican and Democratic leaders criticized Obama for a lack of consultation with Congress in the run-up to the military deployment, and the House has ignored his request for a resolution supporting the mission.

Obama has also come under criticism for not providing enough clarity on the goals of the bombing campaign – whether it is merely to protect Libyan civilians from a crackdown by Moammar Ghadafi or whether it is to drive Ghadafi from power.

The House last week overwhelmingly voted to add amendments to a Defense authorization bill to bar the president from deploying ground troops to Libya and stating explicitly that Congress was not, as part of the legislation, authorizing the military mission.

Kucinich seized on those votes to declare increased momentum for ending the U.S. involvement. “Congress is not satisfied with the blank check that this administration has written for itself to conduct the Libyan war,” Kucinich said. “Congress has made it clear that the Libyan war has not been authorized as required by the Constitution and the War Powers Act.”

Aides said Democrats felt comfortable voting to prohibit ground troops in Libya because Obama has already deemed it U.S. policy.

An aide to Minority Whip Steny Hoyer (D-Md.) said Democratic leaders would not whip their members on the Kucinich resolution.

In a separate vote, the House came surprisingly close to approving an expedited withdrawal of American troops from Afghanistan. The bipartisan measure, authored by Reps. Jim McGovern (D-Mass.) and Justin Amash (R-Mich.), failed 215-204 after drawing 26 Republican votes and all but eight Democrats.

During the debate over that resolution, Minority Leader Nancy Pelosi (D-Calif.) said that she told Afghan President Hamid Karzai that Americans wanted to end the war. “Each time I go there, I say, ‘The American people are growing tired of war,’ ” Pelosi said on the floor.

House Wrestles Over War-on-Terror Measure

Thursday, May 26, 2011 by Politico.com
by Josh Gerstein and Charles Hoskinson

House Republican leaders will attempt Thursday to beat back an effort by Democrats and at least a few GOP lawmakers to defeat a legislative proposal that critics contend will expand and indefinitely extend the war on terror.

The update to the Authorization for Use of Military Force — passed three days after the terrorist attacks of September 11, 2001 — is part of the annual defense policy bill that the House Armed Services Committee approved 60-1 earlier this month.

The fate of the new use-of-force provision could signal whether the U.S. intends to press on with a largely military approach to the war on terror in the wake of Osama bin Laden’s death, or whether lawmakers are prepared to gradually rein in the conflict.

Democrats on the panel didn’t put up much of a fight in committee, but since then they have introduced a series of amendments aimed at nixing both the updated use-of-force authorization, which they argue is too broad and open-ended, and other language that limits President Barack Obama’s power to release Guantanamo prisoners abroad or bring war-on-terror prisoners to the U.S. for trial.

GOP lawmakers who drafted the use-of-force update say it’s a needed revision and affirmation as the 10th anniversary of the Sept. 11 attacks approaches, since the connection between those strikes and the terrorists the United States is now fighting is becoming less obvious.

“I don’t think anyone can legitimately argue it does not need to be updated,” Rep. Mac Thornberry (R-Texas) said in an interview Tuesday. “What this language does is make clear the authority for what we are doing right now.”

The language in the defense bill also explicitly endorses the president’s right to take prisoners and hold them “until the termination of hostilities.” It could also support military action against terrorists not directly related to Sept. 11.

But a coalition of civil liberties and human rights groups led by the American Civil Liberties Union opposes the revamped measure.

“This monumental legislation — with a large-scale and practically irrevocable delegation of war power from Congress to the President — could commit the United States to a worldwide war without clear enemies, without any geographical boundaries (the use of military force within the United States could be permitted), and without any boundary relating to time or specific objective to be achieved,” the coalition wrote Wednesday in a letter to House members.

Opponents got a boost Tuesday when the White House threatened to veto the defense bill if it clears Congress with provisions that “challenge critical executive branch authority.” A statement of administration policy identified those provisions as the ones that relate to detainees. The administration’s official position paper said it “strongly” opposes the reauthorization because it would “effectively recharacterize [the conflict’s] scope and would risk creating confusion regarding applicable standards.”

Advocates said Tuesday’s statement was the first official veto threat by the administration against legislation that would limit its authority to handle detainees.

It was not entirely clear from the White House statement whether the veto threat applies to the use-of-force provision or solely to the detainee-related language. A White House spokesman said Tuesday he is not permitted to expand on or clarify the written statement.

However, one administration official familiar with the deliberations said officials are concerned that the proposed language could have unforeseen implications.

“The bill was rushed through,” said the official, who spoke on condition of anonymity. It “sounds reasonable, but when you look at the consequences that emerge, the more you look, the worse it gets.”

The official said the proposal could be read to authorize military action against any country or individual who supported Al Qaeda or affiliated groups in any way. “Who does it end up with?” the official asked, noting that even when the U.S. was at war in Korea and Vietnam, America did not declare war against all communist governments and sympathizers worldwide.

An amendment to strip out the measure passed the House on a preliminary voice vote Wednesday night, but a formal roll call vote on the issue is expected as soon as Thursday morning.

The chief sponsor of the amendment, freshman Rep. Justin Amash (R-Mich.), warned that the bill’s language amounts to “perhaps the broadest authority for the use of military force Congress has ever considered.”

Amash said it would permit military action not just against Al Qaeda and the Taliban, but an undefined category of “associated forces [that] don’t need to be connected to 9/11, associated forces don’t need to have fought against the United States and associated forces may even include American citizens.”

But House Armed Services Committee Chairman Buck McKeon (R-Calif.) said the bill’s definition of which entities the U.S. is engaged in armed conflict with came directly from one the Obama administration has advocated in court.

“This section does not alter the way the war on terror is currently being fought,” McKeon said during a floor debate Wednesday night. “While the courts have accepted the administration’s position, that could change any day. I’m not willing to take that chance.”

Rep. Barbara Lee (D-Calif.), the only lawmaker to vote against the measure in 2001, said the language in the new defense bill “goes even beyond that original authorization and amounts to a declaration of war without end anywhere in the world.” She called it “an entire checkbook of blank checks.”

Rep. Allen West (R-Fla.), who like Amash is a tea party favorite, spoke out against stripping the provision from the bill. “If we allow an amendment such as this to go forward, it would have precluded us from going in and killing the world’s No. 1 terrorist, Osama bin Laden. If this amendment passes, we will not be able to go after [Anwar] Al-Awlaki,” said West, referring to a leader of the Yemen-based Al Qaeda of the Arabian Peninsula who has reportedly been the focus of U.S. drone attacks.

Amash countered that bin Laden was killed when the original, narrower language was in effect.

The top Democrat on the Armed Services Committee, Rep. Adam Smith of Washington, said Congress should update the measure but that the implications of the GOP language could be significant. “When you put in ‘associated forces’ and you don’t have any end date, it does confer on the president the potential for a great deal of power over a long period of time,” Smith said.

One expert said the administration’s 42-word official explanation of its opposition is confusing because the language in the bill is so similar to what lawyers for the administration have argued in court.

“They cannot possibly be strongly opposed to writing their litigating positions into law. To the extent they are strongly opposed to that, they risk grossly undermining their litigating positions,” said Benjamin Wittes of the Brookings Institution.

Wittes said the administration opposition might be a tactical decision to increase the president’s chances of removing other provisions he objects to in the bill, such as continuing limits on transferring prisoners from Guantanamo to the United States for trial or detention.

He said the administration should negotiate with McKeon to craft mutually acceptable language. “They have a real allergy to dealing with the Hill on these issues. … Their mistrust of the Hill is legion and they take it too far, though they have good reason to be suspicious,” Wittes said.

The administration source acknowledged that the veto threat is undermined somewhat by Obama’s decision last year to sign legislation that limited his ability to release detainees abroad and to bring them to the U.S. for trial.

“We should have picked this fight last December but, okay, we can pick it now,” the official said. “It’s fair to hit the Obama administration for not speaking out earlier, but you’ve got to give us credit for speaking out now.”

Two other detainee-related amendments were debated Wednesday and are expected to receive roll call votes Thursday. Smith put forward language that would restore Obama’s ability to bring detainees to the United States for trial in criminal courts. And Rep. Vern Buchanan (R-Fla.) offered an amendment that would make military commissions the only trial option for all foreigners who allegedly engage in terrorist acts in the United States or against U.S. personnel abroad.

Thornberry predicted that “you will see at the end of the day a pretty big bipartisan majority to pass the bill. I hope there’s not a pressure from [the Democrats’] leadership to make it otherwise.”

White House on War Powers Deadline: 'Limited' US Role in Libya Means No Need to Get Congressional Authorization

(From the George W. Bush book, I Don't Need No Congreshunal Approval to Blow Shit Up to which Obama also subcribes and utilizes at his convenience.--jef)

Jake Tapper - ABC News - May 20, 2011

In an effort to satisfy those arguing he needs to seek congressional authorization to continue US military activity in accordance with the War Powers Resolution, President Obama wrote a letter to congressional leaders this afternoon suggesting that the role is now so “limited” he does not need to seek congressional approval.

“Since April 4,” the president wrote, “U.S. participation has consisted of:

(1) non-kinetic support to the NATO-led operation, including intelligence, logistical support, and search and rescue assistance;
(2) aircraft that have assisted in the suppression and destruction of air defenses in support of the no-fly zone; and
(3) since April 23, precision strikes by unmanned aerial vehicles against a limited set of clearly defined targets in support of the NATO-led coalition's efforts.”

A senior administration official told ABC News that the letter is intended to describe “a narrow US effort that is intermittent and principally an effort to support to support the ongoing NATO-led and UN-authorized civilian support mission and no fly zone.”

“The US role is one of support,” the official said, “and the kinetic pieces of that are intermittent.”

From the beginning of the U.S. military intervention in Libya, the Obama administration has cited the 1973 War Powers Act as the legal basis of its ability to conduct military activities for 60 days without first seeking a declaration of war from Congress. The military intervention started on March 19; Congress was notified on March 21. Those 60 days expire today.

The president thanked the congressional leaders – House Speaker John Boehner, R-Ohio, House Minority Leader Nancy Pelosi, D-Calif., Senate Majority Leader Harry Reid, D-Nev., and Senate Minority Leader Mitch McConnell, R-Kentucky --- for the support that they have “demonstrated for this mission and for our brave service members, as well as your strong condemnation of the Qaddafi regime.”

The president voiced support for a bipartisan resolution drafted by Senators John Kerry, D-Mass., John McCain, R-Ariz., Carl Levin, D-Mich., Dianne Feinstein, D-Calif., Lindsey Graham, R-SC, and Joe Lieberman, I-Conn., stating that Congress “supports the U.S. mission in Libya and that both branches are united in their commitment to supporting the aspirations of the Libyan people for political reform and self-government…Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort.”

Earlier this month, Kerry – who chairs the Senate Foreign Relations Committee – described his resolution as “in limbo.”

Wars Should Be Declared by Congress, Not Merely Launched by Presidents

Monday, March 21, 2011 by The Nation
by John Nichols

The grotesque extremes to which Muammar Qaddafi has gone to threaten the people of Libya—and to act on those threats—have left the self-proclaimed “king of kings” with few defenders in northern Africa, the Middle East or the international community.

Even among frequent critics of US interventions abroad, there is disgust with Qaddafi, and with the palpable disdain he has expressed for the legitimate aspirations of his own people.
So it is that the advocacy for military intervention has spread far beyond the usual circle of neoconservative hawks.

The circumstance is made easier by the fact that the bombing of Libya by US and allied planes is being carried out under the auspices of the United Nations. And with his words and his initial reluctance with regard to taking military action, President Obama has seemed to avoid many of the excesses of his predecessors.

Yet, now the headline on CNN reads “Libya War.”

And anyone who takes the Constitution seriously should have a problem with the fact that, once again, the United States is involved in a war that has neither been debated nor declared by the Congress of the United States.

The penchant of presidents of embark upon military adventures without consulting Congress is now so pronounced that it is barely noted anymore that the Constitution says “Congress shall have power to…declare War.”

Unless the United States is immediately threatened, presidents aren’t supposed to declare wars or launch them on their own.

Of all the checks and balances outlined in the Constitution, none is more significant than the power to declare war.

Yet, since World War II, presidents have launched attacks, interventions and wars without declarations. And now that has happened again.

There are plenty of explanations for why this happens. Treaties that require to bind the United States to the United Nations. The War Powers Act. The general sense that members of Congress would prefer to let presidents call the shots.

But the Constitution does not establish any exit strategies for members of the Congress, They are supposed to provide advice and consent—or to deny it.

Unfortunately, that just does not happen anymore.

When the United States ratified the United Nations treaty after World War II, Henrik Shipstead and William Langer were the only senators to cast “no” votes on the UN Charter. Other senators, California’s Hiram Johnson and Wisconsin’s Robert M. La Follette Jr., expressed reservations.
What was their fear? The senators worried that, under the agreement with the United Nations, presidents would involve US troops in wars launched by the United Nations—without ever consulting Congress.

That fear proved to be well founded, as history would soon confirm, when President Truman sent US troops to Korea as part of a UN mission—but without a Congressional declaration.
President Obama’s approval of an intervention in Libya has also skipped the Congress.
Was this necessary? Of course not. Obama could have consulted Congress; indeed, if the issue was pressing, he could have asked that the House and Senate be called into session over the weekend.

That is what Congressman Dennis Kucinich proposed, when he declared last week that “Congress should be called back into session immediately to decide whether or not to authorize the United States’ participation in a military strike. If it does not, the action of the President is contrary to [the] US Constitution. Article 1, Section 8 of the Constitution clearly states that the United States Congress has the power to declare war. The President does not. That was the Founders’ intent.”

The Ohio Democrat sent a letter to Congressional leaders “indicating that the national interest requires that Congress be called back quickly to Washington to exercise its Constitutional authority to determine whether our armed forces should participate in the UN mission.”

“Both houses of Congress must weigh in,” Kucinich added. “This is not for the President alone, or for a few high ranking Members of Congress to decide.”

Consulting Congress does not mean that Congress will block a war. The constitutional system of checks and balances was not established merely to stop wars, although the wisest of the founders did hope that the requirements they imposed would “chain the dogs of war.”

The decision to place the power to declare wars was placed with the House and Senate in order to allow members of Congress to add their insights, to propose timelines, to set limits and parameters for military initiatives.

The debate, the discussion, the sifting and winnowing of information: This is the point.
Unfortunately, it is a point that Obama has missed.

The United States is now deep into what CNN calls the ”Libya War,” yet there has been no Congressional debate, no advice or consent, no checks and balances.

The Republic was well served by the drafters of a constitution, who gave the war-making power to Congress.

They were wise, and right, to do so. And any president who steers the country into an offensive war without consulting Congress ill serves the founding document and the republic.

The 9/14 Presidency

Barack Obama is operating with the war powers granted George W. Bush three days after the 9/11 attacks.

Eli Lake |

If you believe the president’s Republican critics, Barack Obama takes a law enforcement approach to terrorism. His FBI came under fire for reading Umar Farouk Abdulmutallab, the Nigerian national who nearly blew up an airplane on Christmas, his constitutional rights. His attorney general was blasted for wanting to give 9/11 mastermind Khalid Shaikh Mohammed a criminal trial in lower Manhattan. Republican Sen. Scott Brown rode to his historic upset victory in Massachusetts in part due to this slogan: “In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.” Every sign suggests the GOP will make terrorism a wedge issue in the 2010 midterm elections. “As I’ve watched the events of the last few days,” former vice president Dick Cheney said shortly after the Abdulmutallab attack, “it is clear once again that President Obama is trying to pretend we are not at war.”

It’s true that the president’s speeches and some of his administration’s policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the “long war,” previously the go-to euphemism for the global war on terror. In a major speech last summer, the president’s top adviser on terrorism and homeland security, John Brennan, said explicitly that Obama rejected the phrase “global war” because “it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world.” In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda’s hands by suggesting U.S. courts could not handle terrorism prosecutions.

But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president’s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably “20th hijacker” Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as “black sites,” he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as “rendition.” And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, “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.”

Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution, known as the AUMF, or authorization of the use of military force, granted the administration detention authority.

It’s true that the Obama administration has rejected the early Bush administration’s assertion of an almost supreme wartime executive, or that the president’s wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.

A speech last month from Harold Koh, the State Department’s legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. “Those laws of war were designed primarily for traditional armed conflicts among states,” Koh said. “Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is ‘necessary and appropriate’ under the AUMF requires some ‘translation,’ or analogizing principles from the laws of war governing traditional international conflicts.”

As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it’s true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.

The Mirage of Accountability

Unlike other wars in American history, a global war on a terrorist network has no geographic boundaries and no clear endpoint. FDR interned Japanese Americans until the end of World War II, an extraordinary assault on civil liberties. But at least there was no doubt what the end of that war would look like.

“The danger of a war that takes place everywhere and lasts forever is that it gives the president almost limitless authority to detain or even kill U.S. citizens and civilians anywhere in the world,” says Ben Wizner, an attorney with the American Civil Liberties Union. On February 3, Dennis Blair, director of national intelligence, confirmed that power in congressional testimony, telling lawmakers that the administration had the right to kill American citizens who joined Al Qaeda without court involvement or consultation with Congress. The only legal authority required, Blair said, was “special permission,” which amounts to presidential approval on a case-by-case basis.

This position troubles Philip Alston, the United Nations special rapporteur for extrajudicial executions, whose requests for information on CIA drone strikes has been stonewalled by the Obama administration. “The U.S. under President Obama has apparently maintained the Bush administration’s view that, because it is involved in a global armed conflict against Al Qaeda, it is permitted to target and kill relevant individuals anywhere in the world,” Alston says.
The White House has repeatedly defended using the same powers that were frequent targets of Democratic criticism when Bush and Cheney were exercising them. In a December speech at West Point announcing a surge of 30,000 troops in Afghanistan, Obama underscored that the action was authorized by the September 14 resolution, which, he noted, passed by a vote of 98 to 0 in the Senate.

In the February 1 issue of The New Republic, Jack Goldsmith, a Justice Department lawyer during the Bush administration, argued that Obama has assumed his predecessor’s war powers in part because the early overreach of Bush prompted safeguards that make the executive branch more accountable. Goldsmith, who had been a sharp critic of Dick Cheney’s views on executive power, pointed to “armies of lawyers” in the current administration whose sole job is to make sure highly classified programs adhere to congressional restrictions. “The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves,” he concluded.

It’s true that elements of Bush policy have been reined in by other branches of government. The Supreme Court rejected the military commissions that were first developed for detainees sent to Guantanamo. Obama has remade the commissions, with help from Republicans in Congress, to comply with the high court’s ruling. Congress, which the Bush administration largely ignored when it developed its post-9/11 National Security Agency (NSA) surveillance program, has now reauthorized the Federal Intelligence Surveillance Act (FISA) to allow for much of what was decried as warrantless surveillance of Americans’ phone calls and email. And Congress has asserted at least limited oversight of the war: The top Republican and Democratic leaders of Congress, along with the chairmen and vice chairmen of the intelligence committees—the so-called Gang of Eight—are consulted on major intelligence programs and counterterrorism operations, as they were prior to 9/11.

But this kind of accountability is fundamentally handicapped by the fact that it has no public component. It is far too easy for the consulted members of Congress to conveniently forget their briefings when shadowy counterterrorism practices are disclosed in the media. Nancy Pelosi famously said she was never told about the CIA’s waterboarding and other “enhanced interrogations” after they came to light, even after the CIA produced an official record of a September 2002 briefing on interrogation techniques that said she attended.

These layers of accountability have not prevented abuses in the past. “The creation of the FISA Court in 1978 did not stop the Bush administration from circumventing it in 2001,” says Steven Aftergood, the head of the project on government secrecy for the Federation of American Scientists. “And neither Congress nor the courts have found a way to provide a remedy to people like Maher Arar, who was ‘rendered’ to Syria for abusive interrogation by the U.S. government though he was innocent of any role in terrorism. And the government has now normalized torture by redefining it in a convenient if unpersuasive way. The armies of lawyers that Goldsmith sees working on accountability are not going to hold anyone accountable for any of these developments. Nor will they compensate the victims.”

On the vital question of the public’s right to know what its government is doing, the Obama administration has a mixed record at best. On the transparency side, the Justice Department has disclosed the legal memos drafted in Bush’s second term that reined in some of the president’s extraordinary powers. Over objections from the CIA, the White House ordered the release of a Justice Department inspector general’s report on the enhanced interrogation program.

Yet while the Obama White House has not said so explicitly, its policy to date has been to protect any secret that could theoretically implicate allied intelligence services, thereby keeping dark one of the murkiest corners of counterterrorism. The Justice Department, for example, has urged the U.S. Court of Appeals for the 9th Circuit to throw out a civil suit brought on behalf of Binyam Mohammed, an Ethiopian national. Mohammed was first arrested in Pakistan, and likely tortured there, then sent to Morocco, Afghanistan, and finally the prison at Guantanamo Bay. Last February, he was released from Guantanamo with no charges filed against him. To keep details of the case from coming out, the Obama administration went so far as to threaten the British Foreign Office, saying the U.S. might withhold future intelligence cooperation if a British court released to the public a U.S. document confirming some of Mohammed’s poor treatment. In February the court ignored the pleadings of both Washington and London, releasing the seven-paragraph summary at the center of the controversy.

As for overseeing the intelligence community’s surveillance of Americans, the Obama administration has failed to appoint members to the Privacy and Civil Liberties Oversight Board, a panel formed in 2004 and modified in 2007 to prevent the government from spying on U.S. citizens. As former New Jersey Republican Gov. Thomas H. Kean, co-chairman of the 9/11 Commission, said in January, “We have now a massive capacity in this country to develop data on individuals, and the board should be the champion of seeing that collection capabilities do not intrude into privacy and civil liberties.”

The White House has also opposed a section of the 2011 intelligence authorization bill that would give the General Accounting Office greater authority to audit the intelligence community.

The Forever War

In an April 2009 speech at the National Archives announcing his policy on detainees and transparency, the president talked about the open-ended ambiguities of the current national security conflict. “Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end,” he said. “Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and—in all probability—10 years from now.”

The man who wrote most of that speech, Deputy National Security Adviser for Strategic Communications Ben Rhodes, says Obama has deliberately narrowed the focus of the war on terror to Al Qaeda. He adds that the president is trying to leave a more sustainable legal framework for the war to his successor, pointing to the administration’s bipartisan work to make military commissions comply with the Supreme Court’s 2006 ruling rejecting Bush’s approach.

“We would never claim we are doing everything different,” Rhodes says. “There were good steps taken in the previous administration that we are building upon, but there are also other areas [where] we are providing a different focus.” He also says, however, there are no current plans for revising or supplementing the open-ended September 14 authorization of force.

Changing terminology and acknowledging the problems with open-ended powers are not the same as resolving the ambiguities and hard questions inherent in fighting against disparate groups intent on waging asymmetric warfare against civilians all over the globe. Doug Feith, undersecretary of defense for policy in the first Bush term, argues that both the “war” and “law enforcement” approaches to fighting terrorist organizations were imperfect concepts. Law enforcement is inadequate, he says, because it focuses on building evidence to try people for crimes that have already been committed, as opposed to preventing a deadly attack in the first place. But the war concept is problematic too.

“The nature of the enemy is that it is spread out all over the world,” Feith says. “It is an ideological movement rooted in religion, and it is a network and decentralized. For all of those reasons the construct or concept of war did not fit perfectly either. The principle strategic challenge in this war is how do you fight an enemy located in numerous countries with whom you are not at war.”

It would be easy to embrace the idea that all of Obama’s and Bush’s extraordinary powers are premised on a wildly exaggerated threat. Many more Americans died on our highways in 2001 than from terrorism, but the threat of driving has not mobilized the federal government to create a massive secret bureaucracy to protect us from car accidents.

But small networks of non-uniformed terrorists are indeed actively plotting to inflict maximum civilian deaths in the U.S. and elsewhere, with weapons as potent as they can get their hands on. Only a day before reasserting the president’s power to kill American citizens, Dennis Blair had told the Senate Intelligence Committee he was certain Al Qaeda would attempt an attack on the continental United States by July. After Christmas bomber Abdulmutallab began cooperating with the FBI at the end of January, he told the bureau there were other English-speaking terrorists being trained at camps he had visited in Yemen. The Senate Foreign Relations Committee released a report in January detailing how American ex-felons who converted to Islam in prison had traveled to Yemen for possible terrorist training.

Even if there were no jihadist threat, the march of technology has reached a point where small networks of individuals can launch the same kind of mass-casualty attacks that a generation ago were the province only of nation-states. If one of those terrorists blows up a plane or poisons a reservoir, even if the operation isn’t as deadly as 9/11, there will almost certainly be a public demand for more draconian measures to keep us safe.

Before that happens, there are some steps that can be taken to make sure the extraordinary powers granted on September 14, 2001 do not become permanent. Some legal scholars have suggested that the extraordinary powers be sunsetted and re-debated by Congress every few years, as elements of the Patriot Act on occasion expire. The fundamental anti-terrorism powers granted British authorities for most of the 20th century known at first as the Prevention of Violence Act and then later as the Prevention of Terrorism Act, expired every few years requiring new authorizations—even as the U.K. fought a counter-insurgency campaign at home against the IRA.

This kind of approach is in keeping with recommendations of Yale law professor Bruce Ackerman. Soon after 9/11 he argued that there is an important distinction between war powers, which he says are inappropriate in the context of counterterrorism, and a state of emergency, which would require limited abridgements of civil liberties that are time limited. The British laws first developed to combat the IRA and today used against radical Muslim groups are still described in the law as “temporary powers.”

Second, Republicans and Democrats have pressed the administration to strengthen the oversight of the intelligence community by appointing the Privacy and Civil Liberties Oversight Board, an idea that has been championed by both chairmen of the bipartisan 9/11 commission. Such independent watchdogs are an important part of curbing abuses and provide a place, besides Congress, where whistleblowers can register concerns.

Finally, lawmakers in Congress have at times demanded more public accountability. News stories about the NSA surveillance program, extraordinary rendition, and secret prisons have produced a fair amount of congressional outrage. But Congress has not asked for a regular public accounting from the intelligence community. Indeed, the budget for all current intelligence operations remains a state secret, the details of which only a handful of congressional committees are permitted to know. There are some cases in which secrecy is necessary for successful statecraft, but Congress can enforce a strict sunset on these secrets as well. If the details of U.S.-Pakistan cooperation must be kept in the dark for now, they should not remain that way indefinitely. A model for declassification can be found in the Clinton Administration, which in 2000 released much of the secret U.S. history of aiding Augusto Pinochet in Chile due to an executive order to release most secret documents more than 25 years old.

Above all, we must be honest with ourselves. Obama, like Bush, is committed to a long war against an amorphous network of terrorists. In at least the constitutional sense, he is no harder or softer than his predecessor. And like his predecessor, he has not come up with a plan for relinquishing these extraordinary powers once the long war ends, if it ever does. If change is going to come to U.S. policy on terrorism, it will have to come from a bipartisan recognition that Americans cannot trust their government to tell them when they are safe again.