In His Final Days, Obama Quietly Expands War Powers Before Handing Them Off To Trump

from the hey-that's-a-big-deal dept

While we knew it was impossible for President Obama to truly rein in the massive executive powers that he helped expand (following on the massive expansions from previous administrations) concerning national surveillance and war -- we had still hoped that maybe his concern about a President Trump would let him do a few small things to limit some of the most egregious powers. Instead, it appears that President Obama is doing the opposite, and expanding his war powers, just as he's about to hand them to someone that he, himself, has loudly criticized as being unfit for the Presidency.

For years now, we've written about how the Obama administration has regularly rewritten the dictionary in order to pretend that the Authorization to Use Military Force (AUMF) hastily granted by Congress in the wake of 9/11 enabled him to go to war with basically anyone. If you don't recall, the AUMF granted the President the power to use "all necessary and appropriate force" to go after those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." That's already fairly broad, but over the years basically our entire government has pretended that (1) the AUMF included the ability to also target "associated forces" (even though it does not) and (2) it allowed the President to simply lump in anyone he wanted as an "associated force" allowing him to bomb them without any Congressional authorization. This is how you get a war without end, in which the explicit authorization to go after Al Qaeda is now being used on a surprisingly long list of groups that didn't even exist in 2001.

And, just a few days ago, President Obama expanded the list yet again, allowing himself to go after yet another group: Shabab. Now, no one is trying to claim that Shabab, or ISIS or any other group that has been added to the list aren't out to do serious harm to the US. But, this seems to go way beyond the basic functions of the office of the President and the simple Constitutional requirement for Congress to declare war. As Trevor Timm notes at the Guardian, this is a big deal:

Council on Foreign Relations senior fellow Micah Zenko didn’t mince words in the Times when describing what the Obama administration is doing: “It’s crazy,” he said of the administration’s redefining the law out of existence. “This administration leaves the Trump administration with tremendously expanded capabilities and authorities.”

Make no mistake: Trump will have a free hand to use the law meant for the perpetrators of 9/11 to wage war around the world, fashioning it to different enemies at his command, and he will be able to point to precedent set by the Obama administration as he does it.

Per usual, all the White House’s decisions are being made under the veil of official secrecy. The only reason we know about it is not because the administration announced it, but because the New York Times reported it after unnamed officials leaked it to them.

And that's not all. The Obama administration has also given more powers to the Joint Special Operations Command (JSOC) -- the organization that helped find and kill Osama bin Laden. And, again, people are raising concerns about how this power will be used by the next President. As Timm notes:

Trump is now coming into office with ever expanding war powers, and they’re being served to him on a silver platter by the same people who told the American public two months ago that Trump was so unstable and thin-skinned that he couldn’t be trusted with the nuclear codes.

This isn't about which President or which party you support. It seems like we should all be concerned with the ever growing power of the executive branch in general, and especially its willingness to grant itself more powers to go around and kill people.

Filed Under: aumf, donald trump, executive power, president obama, surveillance, war

Obama Administration Learns: If You Redefine Every Word In The Dictionary, You Can Get Away With Just About Anything

from the words-mean-something dept

We've written before about how the NSA uses its own definitions of some fairly basic English words, in order to pretend to have the authority to do things it probably... doesn't really have authority to do. It's become clear that this powergrab-by-redefinition is not unique to the NSA when it comes to the executive branch of the government. Earlier this year, we also wrote about the stunning steady redefinition of words within the infamous "Authorization to Use Military Force" (AUMF) that was passed by Congress immediately after September 11, 2001. It officially let the President use "all necessary and appropriate force" against those who "planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001." But, over time, the AUMF was being used to justify efforts against folks who had nothing to do with September 11th, leading to this neat sleight of hand in which the military started pretending that the AUMF also applied to "associated forces." That phrase appears nowhere in the AUMF, but it's a phrase that is regularly repeated and claimed by the administration and the military.

But, it goes beyond that. As Trevor Timm highlights over at The Guardian, pretty much the entire drone bombing (drones, by the way, are also apparently "authorized" by the AUMF) of Syria involves the administration conveniently redefining basic English to suit its purposes. Let's start with the authorization for the bombing itself:

For instance, in his Tuesday statement that US airstrikes that have expanded into Syria, Obama studiously avoided any discussion about his domestic legal authority to conduct these strikes. That dirty work was apparently left up to anonymous White House officials, who told the New York Times’s Charlie Savage that both the Authorization of Use of Military Force (AUMF) from 2001 (meant for al-Qaida) and the 2002 war resolution (meant for Saddam Hussein’s Iraq) gave the government the authority to strike Isis in Syria.

In other words: the legal authority provided to the White House to strike al-Qaida and invade Iraq more than a dozen years ago now means that the US can wage war against a terrorist organization that’s decidedly not al-Qaida, in a country that is definitely not Iraq.

It's amazing what you can accomplish when you pretend words mean something entirely different than they do. Hell, if you can just make words mean whatever the hell you want them to mean, there's no such thing as a limitation on what you can do. It's all fair game. Who needs laws when the law is basically a mad libs for you to fill in what you want?

Moving on. The definitional jujitsu covers the people who were killed by the bombing as well. Civilians? What civilians?

Buzzfeed’s Evan McMorris-Santoro reported that the Pentagon is “confident” that no civilians were killed in any of the initial airstrikes in Syria, despite a credible report to the contrary. But we have no idea what that actually means either. The White House previously embraced a re-definition of “civilian” so it could easily deny its drone strikes were killing anyone than “militants” in Yemen, Pakistan, and elsewhere, according to a New York Times report in 2012:

It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

So any casualties, if they’re men, might well be tallied as “militants” even if the actual dead people were not.

Kill anyone you want, just as long as they're men of a certain age. Thank you Pentagon dictionary. You just wiped out civilian deaths.

But why stop there? How about "imminent threats"? Because that sounds pretty scary, right? It sure is -- especially when it can mean whatever the hell the administration wants:

In addition to conducting airstrikes against Isis is Syria on Tuesday, the Obama administration also announced it had also targeted the “Khorasan Group”, a separate al-Qaida-linked terrorist organization. They justified it by claiming that the group was plotting an “imminent” attack on the US. Before last week, hardly anyone had heard of the Khorasan Group (in fact, even their name was classified), so it’s difficult to judge from public information just how threatening their alleged plot really was. But when you add in the administration’s definition of “imminent,” it becomes impossible.

Take, for example, this definition from a Justice Department white paper, which was leaked last year, intended to justify the killing of Americans overseas:

[A]n “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

To translate: “imminent” can mean a lot of things … including “not imminent”.

This is pretty neat. Anything else you've got for us? How about "combat" or "ground troops"? They're not what you think they are either, because a malleable language can do anything:

As the New York Times’s Mark Landler detailed over the weekend, White House has “an extremely narrow definition of combat … a definition rejected by virtually every military expert.” According to the Obama administration, the 1600 “military advisers” that have steadily been flowing in Iraq fall outside this definition, despite the fact that “military advisers” can be: embedded with Iraqi troops; carry weapons; fire their weapons if fired upon; and call in airstrikes. In the bizarro dictionary of war employed by this White House, none of that qualifies as “combat”.

Yes, the English language changes over time and that's generally a good thing. But we're not talking about the way the word "decimate" once meant to lop off 10% and now means "destroy everything." This is a deliberate misrepresentation of things.

Hell, this seems to go further than Orwell even imagined with his authoritarian use of language and rewriting of history. In this case, rather than just saying "we were always at war with Eurasia," he could have just changed the definition of "we," "were," "always," "at," "war," "with," and "Eurasia," and it would have been that much more powerful.

Filed Under: aumf, authorization to use military force, civilians, combat, definitions, english, fud, imminent, language, obama administration, terror, war

DOJ Drone Memo: AUMF Trumps All And Rights Are Subject To Arbitrary Revocation In Times Of 'War'

from the killing-in-the-name-of dept

The long-awaited "drone memo" has now been released, and it details the DOJ's justifications for the extra-judicial killing of American citizens. While the government runs through various permutations of its arguments for "justified" killings, the short version can be boiled down to four letters: AUMF.

The Authorization for Use of Military Force Against Terrorists was passed three days after the 9/11 attacks and is every bit the sort of kneejerk legislation every lawmaker should approach warily, but seldom do. This kicked off America's "War on Terror," a slippery slope "battlefield" that has been used to justify everything from domestic surveillance by the NSA to the purchase of cell phone tower spoofers and discarded military vehicles by local police departments.

The memo (which starts at page 67 of the embedded document below -- the legal decision ordering the release is above it) starts out with the DOJ doing Congress' thinking for it. This part discusses the "authority" behind the killings, aligning it roughly with the deadly use of force by law enforcement, something that makes certain killings lawful under certain circumstances.

The justifications listed below constantly cite 18 USC 1119(b), a law that simply states that it's illegal for a US citizen to kill another US citizen residing outside US borders, making them subject to the United States' laws on murder and manslaughter. But what looks simple and solid on the law books is apparently filled with loopholes and things Congress meant to make clear but apparently didn't.

But the recognition that a federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express.

What the DOJ basically argues here is that it would be perfectly fine for an NYPD officer to use justified, deadly force to shoot another American overseas. This would seem to be an unlikely event, but the NYPD has sent its officers all over the world in recent years, much to the dismay and irritation of local law enforcement and security agencies.

The DOJ further presses its point by comparing extrajudicial killings to speeding tickets (from the same paragraph as above).

Cf. Nardone v. United States, 302 U.S. 379, 384 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading "would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm")

On page 73, the DOJ notes that there's actually no federal statute that grants the government the same "rights" (in terms of justified use of deadly force) local law enforcement agencies enjoy, but that doesn't slow down the rationalizing. The DOJ looks back through legislative to find something that might apply to its drone attacks. But what it quotes here has nothing to do with executions.

To close the "loophole under Federal Law which permits persons who murder Americans in certain foreign countries to go punished [sic]," id, the Thurmond bill would have added a new section to title 18 providing that "[w]hoever kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113 of this title." S. 861, 102d Con g. (1991) (incorporated in S. I 241, 102d Con g. §§ 3201 -03 (1991 )). The proposal also contained a separate provision amending the procedures for extradition "to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who conunit violent crimes against U.S. nationals."

It should be noted that none of the punishments listed are "death sentence without due process." At best, the government is allowed to remand the US citizen to local law enforcement, should there be no extradition treaty in place. Thurmond's bill does not say killings are justified if extradition isn't practical.

It goes from there to twisting words around until its convinced they read differently than they actually read. The following argument can best be summed up as: "the killing is justified because the killing is justified." Because we say its lawful, it must be lawful. (Hence the intense leaning on the AUMF later.)

It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi 's citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to "unlawful" killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not "unlawful" because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.

Now that the DOJ has established a "right" to conduct extrajudicial killings based mainly on public authority justifications granted to law enforcement, it then discussed whether this can be stretched to cover DoD and CIA operations. Here's where the DOJ begins wading into the "War on Terror" justifications.

In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the "lawful conduct of war"-a well-established variant of the public authority justification.

Technically, we're not "at war" anywhere in the world. There's no declared war, other than the one on terrorism, which the DOJ terms (using the AUMF wording) a "non-international armed conflict." If this is the justification, terming anything a "war on…" would justify extrajudicial killing, because no one expects murder charges to be brought against them during normal acts of war (i.e., combatants killing other combatants).

Because the AUMF says we can detain a US citizen who is assisting our enemies, it also means we can kill a US citizen who does the same.

And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of "necessary and appropriate" lethal force against a U.S. citizen who has joined such an armed force.

The DOJ also discusses the justifications for the CIA's involvement, but much of that will still remain a mystery. Large portions of this have been redacted, but the discussion does start out with this unintentionally hilarious assertion.

[redacted] -- the CIA -- [redacted] would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict...

Maybe in light of its still-unreleased "Torture Report," the DOJ might want to retract that statement. But the CIA's justifications apparently aren't that far off from the DoD's, and they include the same willingness to put words in Congress' mouth.

Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted].

Finally, the DOJ discusses the rights completely ignored by extrajudicial killing. First, the Fifth Amendment is dismissed because the AUMF trumps all.

In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces, explaining that "the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process."

"Constitutionality," in the DOJ's hands, is mostly about what rights people don't have.

We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is "continued" and "imminent..."

The explanation "above" is, of course, redacted.

The DOJ continues on to wave away the Fourth, again using the AUMF as justification.

The Fourth Amendment "reasonableness" test is situation-dependent. Cf Scott, 550 U.S. at 382 (Garner "did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force'"). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy's overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible.

[redacted] at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. [redacted ] and thus that the intrusion on any Fourth Amendment interests would be outweighed by "the importance of the governmental interests [that] justify the intrusion..."

If it's difficult, don't try. At least that much agrees with law enforcement rationale. Why get a warrant when exigent circumstances can be abused? Why respect rights when you can claim there's a "continued" and/or "imminent threat?"

Filed Under: 4th amendment, 5th amendment, aumf, cia, constitution, dod, doj, drones, extrajudicial killings, legal rationale

Maximum Orwell: Ending The War Without End, By Enabling A New War Without End... And Less Oversight

from the 60-words dept

If you haven't yet come across it, you should listen to the recent Radiolab episode entitled "60 Words." It's a bit different from the standard Radiolab fare, instead presenting a somewhat chilling look into the infamous 60 words in the AUMF -- the "Authorization to Use Military Force" that was written immediately after the September 11, 2001 attacks, and whereby Congress basically gave the President the "authority" to use the military to go after terrorists, no matter where they lived. The Radiolab episode was done in partnership with Gregory Johnsen of Buzzfeed, who had written up a similar piece a few months earlier, "60 Words And A War Without End." It talks about the history and importance of those 60 words -- and also how the interpretation of those 60 words changed over time, in a very dangerous manner.

By now, after having followed the whole NSA debacle for quite some time, we're getting used to how words are twisted by the executive branch to mean something Congress clearly did not intend, and here the amazing thing is the story of how the Defense Department suddenly started inserting "associated forces" into its explanation of who they were targeting. You see, those short 60 words were as follows:

That 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.

Note that it appears to be focused just on those who planned the September 11th attacks. But, the executive branch has conveniently reinterpreted it to mean "anyone we consider to be a terrorist" by repeatedly claiming that it applies to "associated forces." You'll note, of course, that "associated forces" does not appear anywhere in the statement, but it hasn't stopped the Pentagon from reading that into the agreement. While a judge, John Bates -- whose name you might recognize from various FISA court rulings -- questioned this obvious expansion of the AUMF, eventually he rubber stamped this broad interpretation. From there, the government has just assumed that anyone they classify as a terrorist organization is an "associated force" and can be targeted.

What was supposed to be a rather routine Senate hearing early in Obama’s second term provided a glimpse into just how expansively the administration had been interpreting the sentence at the heart of the AUMF. On May 16, 2013, the Defense Department sent a quartet of officials to the Capitol to answer questions about the AUMF and the current state of the war against al-Qaeda. In the course of their joint testimony, Michael Sheehan and Robert Taylor, who were speaking for the four, both claimed that the 2001 AUMF and its 60 words were “adequate” for the administration’s needs.

Sheehan, a balding former counterterrorism official with the New York Police Department who looked like he had forgotten to shave that morning, spoke first. The administration, he told the senators, was “comfortable” with the AUMF as it was currently structured because it didn’t “inhibit us from prosecuting the war against al-Qaeda and its affiliates.”

Sen. John McCain was incredulous. Shuffling through some papers, the 76-year-old senator pulled out a copy of the AUMF and started reading. Twenty-four seconds later he finished the 60-word sentence, and then he started to lecture. “This authorization was about those who planned and orchestrated the attacks of September 2001,” McCain said, staring down toward the witness table. “Here we are, 12 years later, and you’re telling us that you don’t think it needs to be updated,” he continued. “Well, clearly it does.”

Following that, Senator Angus King finally asked about this repeated claim of "associated forces" by noting it's not anywhere in the AUMF:

“The AUMF is very limited, and you keep using the term ‘associated forces’ — you use it 13 times in your statement — that is not in the AUMF,” King said, before adding, “I assume [the AUMF] does suit you very well because you’re reading it to cover anything and everything.”

That happened a year ago, and more or less woke up a bunch of people -- including experts who didn't realize it before -- that the administration had totally reinterpreted the AUMF from a narrowly constructed, limited authorization for military intervention into one that was broad, all-encompassing, and never-ending.

Oh, and then it gets worse, because the US government refuses to identify what it believes the AUMF actually covers -- and, in fact, it has a secret, classified list of "associated forces." You may recall that, at about the same time as this hearing happened, the Chelsea Manning trial was happening -- and we pointed out that among the charges was that he was aiding the enemy... but the "enemy" was classified. We thought that was crazy. How can you be accused of aiding an enemy when the enemy itself is not named. Even worse, just the idea of having "classified" enemies raises serious questions about what sort of expansive war the government has created. It out-Orwells even Orwell.

And, of course, soon after that, President Obama talked about finally closing the door on the AUMF, but hadn't done anything to actually do that. That finally brings us to today, where Congress is finally talking about revisiting the AUMF. Unfortunately, as we've seen with the NSA as well, when some people talk about "revisiting" the AUMF -- or even when they talk about "limiting" it, the reality may be that they're looking for ways to expand and broaden it. As Adam Sewer at MSNBC notes:

But again, those who want to revisit the AUMF don’t necessarily want the Obama administration or future presidents to pursue Al-Qaeda less aggressively, they just want to make sure that aggression has the force of law behind it. Crafting legislation that appears to narrow the 2001 authorization, while in effect expanding it, would not be too difficult.

And while Senator McCain has criticized the government's interpretation of the AUMF, saying he didn't believe it gave the President authority to fight terrorism in places like Yemen and Somalia, it appears he's willing to authorize those kinds of wars anyway.

“It does not need to be repealed, but it is hard for me to understand why you would oppose a revision of the Authorization to Use Military Force in light of the dramatically changed landscape that we have in this war on Muslim extremism and al Qaeda and others.”

Perhaps the most chilling part in any of these stories comes towards the end of the Radiolab episode, right after they cover President Obama talking about ending the AUMF -- and "ending the war." From there, the President then talks about the rules for drone strikes, which we've covered here as well, in which he appears to indicate the power to do that... without the AUMF. From the Radiolab episode:

Jad Abumrad: How do you end a war when the vast amount of the people that you're calling "the enemy," haven't stopped fighting?

Benjamin Wittes: So, what he does, in the May speech, and it's extremely clever -- and, by the way, it's really well lawyered -- is he announces a set of rules, going forward, for drone strikes.

President Obama (giving the speech): America does not take strikes to punish individuals. We act against terrorists who pose a continuing and imminent threat to the American people.

Wittes: ... that he's only going to use drone strikes when there's an imminent threat.

Abumrad: And it's well understood, by people who understand this kind of stuff, that in the Constitution and also in international law, the President is allowed to act unilaterally, in self-defense, when there is an imminent threat. Meaning, it's urgent and you can't feasibly capture that person. Ben fears that what President Obama was doing there, by stressing that word...

Obama speech: ... an imminent threat to the American people...

Abumrad: ... is that he was laying a new foundation. He was saying, 'when the AUMF ends -- and I want it to end -- I do have another way of justifying all these things.'

Wittes: ... maybe they wouldn't change.

Abumrad: So the drone strikes, and the raids would continue.

Wittes: As long as you have a capacious enough understanding of what the word "imminent" means, you might be able to continue a lot of this stuff. And then you don't have to go to Congress at all. And you can say you ended the war. And the human rights groups will cheer for you. And we'll mysteriously find that there are a whole lot of "imminent threats."

Obama speech: ... for freedom!

Right. So, while it's nice to see Congress talking about finally revisiting the AUMF, none of this may end.

Filed Under: 60 words, angus king, associated forces, aumf, barack obama, drones, imminent threat, john mccain, terrorism, war without end