Endless War: Top Obama Lawyers Tell Congress the President Can Do Anything In War On Terrorists

President Obama has all the authority he needs to fight terrorists overseas, top lawyers for the Pentagon and State Department told the Senate Foreign Relations Committee Wednesday, in a contentious hearing over whether Congress’ authorization to use force after the Sept. 11, 2001 attacks was still needed—or even relevant. 

AUMF—the Authorization To Use Military Force passed by Congress three days after the 9/11 attacks—gave then-President George W. Bush unlimited authority to go after foreign terrorists. Candidate Obama criticized that power as excessive in 2008, and has frequently said during his tenure that it was time to move on from that wartime footing. But when top lawyers at the Departments of Defense and State were asked about AUMF and the president’s war-making authorities on Wednesday, they did not budge, refusing to declare that AUMF should be repealed.

Moreover, under pointed questioning by Democrats and Republicans, they said even if AUMF were repealed the president still had legal authority to go after anyone he deems to be a terrorist threat. It might be that other laws would be cited to justify that operation, said Department of Defense General Counsel Stephen Preston and State Department Deputy Legal Advisor Mary McLeod. Both left no doubt that the president could do whatever he wants.   

“Are there groups today that the administration cannot go against because the AUMF does not allow you?” asked a flustered Sen. Bob Corker, R-TN, the ranking Republican.

“I am not aware of any foreign terrorist group that presents the threat of violent attack against this country that the president lacks the authority to use military force to defend against, as necessary, simply because they have not been determined to be an associated force within the AUMF,” Preston replied. “The president does have the authority.”

That legally opaque answer means Congress cannot limit the president’s decisions.

When Virginia Democrat Tim Kane asked if the U.S. could hold foreigners at the naval base in Guantanamo Bay, Cuba, if AUMF were repealed, McLeod said yes, because justification could be found under the international laws of war.

In other words, despite Obama’s statements that it was time to revise or repeal the legal basis that has allowed the U.S. to wage an unlimited war against foreign terrorists, the national security establishment—and by implication, Obama himself—appears to want no one, including Congress, to reel in their authority to do as they please.

“What I hear is there’s no reason that the administration would oppose the repeal of the AUMF, totally, because you basically say the president has all the authority notwithstanding the AUMF,” Senate Foreign Relations Chairman Robert Menendez said, prompting the DOD’s Preston to backtrack and reply that the president “wants us to examine that question.”  

That jockeying and obfuscation reveals that there are many similarities between the Bush and Obama administrations in their preferred means of going after those they judge to be terrorists. Superficially, President Obama may say the Bush-era tools and tactics are overreacting, which prompted ex-Vice President Dick Cheney to go on CNN as recently as 2011 and urge Obama to reconsider his words. However, on substance, both White Houses have embraced the same approaches.

That assessment is not new to experts who track the Obama’s administration’s war-on-terror programs, although, they note that since the years immediately following the 9/11 attacks that Congress and Supreme Court has codified many Bush policies, such as how the White House can obtain approval for surveillance (through the FISA Court system) and what rights terrorists have—or don’t have—in civilian and military courts.

The single-paragraph AUMF has been the legal justification for the longest war in U.S. history; everything from the jailing of suspected terrorists at Guantanamo to drone strikes in Somalia and Yemen. Wednesday’s Senate Foreign Relations Committee hearing was supposed to explore how and when that congressional mandate could be revised or repealed. But the biggest surprise was the administration’s top lawyers didn’t think Obama even needed it anymore to fight the war on terror as he pleased. 

Asked by Corker, if the 2001 AUMF was repealed “can the president carry out the counter-terrorism activities he is carrying out today,” McLeod said, “Yes I believe he could.”

Going deeper into the legal thicket, both McLeod and Preston said that the Constitution’s Article II gives the president all the authority he needs to take military action. That view was initially promoted in the Bush White House by David Addington, Cheney’s chief counsel, who constantly told his legal critics, "You are either with us or against us."

Now, 13 years later, McLeod and Preston say the president doesn’t need congressional authorization at all.


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