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

Legal Issues

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