By BOB STONE
John Kerry testified before the Senate Foreign Relations Committee this afternoon regarding the administration’s plans to deal with ISIL. When Democrat Robert Menendez asked what authority the Obama administration was relying upon for its use of military force, Kerry claimed the 9/11 AUMF gave the President full authority to conduct military operations against ISIL in Iraq and elsewhere.
“How is it that the administration believes that the 9/11 AUMF — or the Iraq AUMF — provide the authorization to move forward, whether the Congress decides to or not?” [Menendez] asked, noting that the administration had pushed for the Iraq AUMF to be repealed just one year previously.
The secretary of state began a convoluted response, saying that “good lawyers” in the State Department have concluded that the 2001 authorization “includes al-Qaeda — it’s always been interpreted as including al-Qaeda.”
“Al-Qaeda threw out ISIL,” Menendez replied.
“Al-Qaeda and associated forces,” Kerry insisted. “That is the language. al-Qaeda and associated forces. Now, ISIL began as al-Qaeda. In 2005 in Iraq, 2004, ISIL was al-Qaeda in Iraq. And it only became this thing called ISIL a year ago. And it only became that out of convenience, to separate themselves in an internal fight. . . . A mere publicity stunt to separate yourself and call yourself something else does not get you out from under the force of United States law that is targeting them.”
“I appreciate your ability as a former prosecutor and a gifted attorney to try to make the case,” Menendez said. “I will tell you that — at least from the chair’s perspective — you’re gonna need a new AUMF. Because I don’t want to be part of, thirteen years later and a multitude of countries that have been used in that regard, for that to be the authority.”
Source: National Review
Barbara Boxer later chimed in and defended Kerry by saying she too believed the 9/11 AUMF gave Obama the authority to use the military against ISIL.
Since two wrongs don’t make a correct legal analysis, the country would do well to heed Menendez’s warning that the Obama administration is “gonna need a new AUMF.”
Bruce Ackerman, professor of law at Yale, penned an Op-Ed in the NY Times on the subject. He wrote:
“[T]he 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.
Mr. Obama is rightly proud of his success in killing Osama bin Laden in 2011 and dismantling the Qaeda network he built up. But it’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq. In justifying earlier bombing campaigns in Yemen and Somalia, the administration’s lawyers claimed that the 2001 authorization covered terrorist groups that did not even exist back then. They said it sufficed to show that these groups were “affiliated” with Al Qaeda.
Even this was a big stretch, and it is not big enough to encompass the war on ISIS. Not only was ISIS created long after 2001, but Al Qaeda publicly disavowed it earlier this year. It is Al Qaeda’s competitor, not its affiliate.
…[F]for now the president seems grimly determined to practice what Mr. Bush’s lawyers only preached. He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war.
In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.
Source: NY Times
Ain’t it amazing how a few videos on Youtube can frighten “the home of the brave” into abandoning its constitutional principles, push us back into war and grant the neoconservatives nearly everything on their wish-list?
Nicole Plyler Fisk
Gene Howington
FFS Guest Blogger
Joy of Fishes
Chuck Stanley
shortfinals
Terry Welshans
ann li-summers
wordcloud9
Flowers For Socrates 
What will we do when (if) one or more of our young pilots are captured & beheaded ? I think this is a real possibility.
“In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.”
And not for the first time either.
Bob,
“Good Lawyers”, or perhaps “Good Germans”?
The CMIC creators of PNAC strike again.
Ah, I see—if a Republican administration asserts a right, it only attaches to other Republican administrations.
I’m fine with President Obama attempting to assert the authority claimed by the Bush administration—I’d like to see more of it. If the Republicans don’t like it, they can take him to court and set a precedent that the next Republican president must also adhere to. That’s how the checks and balances are supposed to work, right? One could also argue that the check on Congressional dysfunction is Executive overreach. If Congress is unable or unwilling to do its Constitutionally mandated job, then what does the President’s oath hold him to do?
Slarti,
This current situation with the interpretation of the AUMF might actually be an instance of Congress performing its job.
The issue is if the AUMF satisfies the Administration’s obligation under the War Powers Act. The Administration claims, “that ISIL was originally part of al Qaeda and, while it subsequently split from al Qaeda, ‘is the true inheritor of Usama bin Laden’s legacy,'” and so needs no further authorization from Congress. Specifically, the phrase “associated forces” in the AUMF that Kerry claims is contested.
Jonathan Hafetz, Associate Professor of Law at Seton Hall, and a former senior attorney at the ACLU’s National Security Project claims the phrase “associated forces” does not appear anywhere in the AUMF.
You can read Hafetz’s opinion on the matter here:
http://balkin.blogspot.com/2014/09/the-elasticity-of-war-ever-expanding.html
Additionally, Bruce Ackerman, whom Bob cites, expanded on his New York Times essay and one can read that here:
http://balkin.blogspot.com/2014/09/obamas-unconstitutional-war.html
Sorry, but:
“Specifically, the phrase “associated forces” in the AUMF that Kerry claims is contested.”
should read: “Additionally, . . . “
gbk,
If that’s the case, then the Republicans should be able to take it to court and get a precedent that will stop President Obama but also limit future Republicans. History suggests that if President Obama backs down, the Republicans will have no qualms about reusing his reasoning when they feel it to be in their interests.
http://www.lawfareblog.com/2014/09/the-draft-aumfs-for-the-islamic-state-do-not-limit-congressional-authorization-on-ground-troops-or-geography-or-associated-forces/ “The two most promising Islamic State AUMFs I have seen are the one sponsored by Representative Schiff and the one sponsored by Senator Kaine. Both drafts, in different ways, purport to limit the authorization for the President to use force against the Islamic State in at least three respects: (1) They authorize force only in Iraq and Syria, (2) They do not authorize ground troops (except for training or rescue situations, and the like), and (3) They do not authorize force against associated forces (though Kaine’s does if a certain report is filed).
The draft AUMFs appear to be entirely ineffective in limiting congressional authorization to use force against the Islamic State in these three respects. The reason is that the limitations in the draft AUMFs, by their terms, apply only to the specific authorizations in the draft AUMFs. They do not affect Congress’s authorization of force under the 2001 AUMF. The Obama administration interprets the 2001 AUMF as an independent authorization of force against the Islamic State, and the 2001 AUMF does not contain any of the limitations. Assume that one of the draft AUMFs becomes law. If the President decides that he wants to use ground troops in combat against the Islamic State, or that he wants to use force against Islamic State in Lebanon, or that he wants to go after forces associated with the Islamic State, he can simply choose to base his action on the 2001 AUMF. And he could still maintain that Congress authorized the action despite the newer AUMFs.
If Congress wants to limit its authorization of force as applied to the Islamic State concerning geography, ground troops, and associated forces, it must also specifically amend the 2001 AUMF to make plain that the 2001 AUMF itself does not authorize force against the Islamic State outside of Iraq and Syria, or against associated forces of the Islamic State, or involving ground troops against the Islamic State. (I note that the Schiff AUMF sunsets the 2001 AUMF after 18 months, and thus would eliminate all independent authorizations under the 2001 AUMF 18 months after the new Islamic State AUMF comes in to force.)” A differing opinion from Jack Goldsmith, Harvard University’s national security law professor.
This pretty much or almost enough to make me give up hope on the Obama Admistration as a positive icon in a social movement. Almost but not yet. i am still hoping, although the general lack of uproar that i am hearing over this is again (sigh) disturbing.
My wonder is why? Do people think that it is hopeless, do they feel that dis-enfranchised? or are they unaware somehow? Are they so mislead or am I so mislead? Why does something that seems so clearly and plainly, literally written down not rouse more ire? Or worse yet are they just numb and apathetic with sensory overload?
Maybe they are all just standing there stupidly like me dazed and asking the same “Frigging” questions.
Caitlyn,
One possible explanation . . .
https://www.youtube.com/watch?v=WFnSxeDfENk
Gene, you have given me the giggles. Which I needed today, thank you.
If you can’t learn something new everyday, which makes a day complete, I reckon that giving someone the giggles is the next best thing. One lives to be of service.
As Jimmy Valvano said at the 1993 ESPY awards (a really great speech, by the way—it was on my birthday and I was there), if you’ve laughed, you’ve cried and you’ve thought, then you’ve had a good day.
Remember, you’ll be successful if you remember 3 things: your god, your family and the Green Bay Packers.