Author Archive for
Deborah Pearlstein

These Aren’t the Courts We’re Looking For

by Deborah Pearlstein

The N.Y. Times editorial page yesterday joined the growing chorus of folks in D.C. calling for Congress to create a new, executive branch court to review executive targeting decisions.

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.

The speed with which this idea has gained currency in Washington has, I fear, less to do with its merits and more to do with the intense attractiveness of the notion that there might be a neat procedural solution to a messy substantive problem. Alas, I don’t think it works that way. Here’s my thinking. (more…)

Obama Orders Classified OLC Memo Released to Congressional Intelligence Committees

by Deborah Pearlstein

According to NPR:

President Obama directed the Justice Department late Wednesday to give Congress access to classified information that details the rationale for targeted strikes against U.S. citizens believed to have links to al-Qaida. NPR’s Carrie Johnson is reporting on the story for our Newscast Unit. She says the decision comes after Senators threatened to hold up nominees for the CIA and Pentagon. Here’s more from her report:

“An administration official says the president personally made the decision to give lawmakers on the house and Senate intelligence committees a chance to review the memo. The classified document provides a legal justification for killing U.S. citizens who have become senior operatives in al-Qaida. A U.S. drone killed radical cleric Anwar al-Awlaki, a U.S. citizen in Yemen in September 2011. Senators said they wanted to see the basis for that action before they would approve a new CIA director. The administration official says the release is extraordinary and does not set a precedent.”

The decision to grant access to lawmakers comes a day before John Brennan, Obama’s pick to head the CIA, faces the Senate Intelligence Committee for his confirmation hearing.

Note that if the full memo is still classified, and no redacted version is available, it may yet be some time before the memo sees the light of day. Nonetheless, this is surely a step in the right direction.

White Paper

by Deborah Pearlstein

I set out to begin to untangle the strings of argument in the DOJ white paper, and find myself, after three pages of writing notes myself, having untangled only as far as the paper’s page 5 (of 16). There is something wrong with a memo like this. Let me see if I can explain why.

The white paper says that it intends to set forth “a legal framework for considering” when the U.S. government can “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” While the paper disclaims any intention of establishing the “minimum requirements necessary” to make such a killing lawful, I take it to be an explanation for how such an operation is both authorized by domestic law, and in compliance with the various provisions of domestic and international law that regulate the use of force. It is the closest thing we have seen – and perhaps the closest thing that exists – to a detailed argument for why such a practice is legal.

So let’s start where the paper starts, more or less, with the domestic source of authority on which the administration relies for the use of lethal force it describes. The paper points to two sources of domestic law and suggests the operation is authorized either by the Constitution itself or the statutory Authorization for Use of Military Force (AUMF). So which one is it in the highly specific context here – statute or Constitution? The paper never commits. But which one it is matters enormously. It is, in a sense, what matters most. Pull out the argument threads. What law does the paper mean to reference by invoking as a source of authority the “President’s constitutional responsibility to protect the nation” (pp. 1, 2)? I infer from this description the authors mean to reference the President’s power under Article II, though I could find no citation to that provision. In particular I imagine this is some reference to the President’s power to, as the framers put it, “repel sudden attacks.” In such limited form – i.e. as a defensive use of force – it is a principle that has been recognized in various ways back to the Civil War era Prize Cases (though I find no citation to those authorities either). Does the paper contemplate that this Article II power alone – without further congressional authorization – would be sufficient as a matter of domestic law to authorize the use of lethal force against any senior operational leader of al-Qa’ida or an associated force actively engaged in planning operations to kill Americans? If the Article II power so conceived includes lethal force in those circumstances, mustn’t it also include the authority to employ lesser forms of force, like detention, against those figures, without further congressional authorization? Given the Administration’s insistent reliance on statutory, and not purely constitutional, authority to support the legality of ongoing detention of folks like KSM, it is hard to imagine the paper here is really intended as a full throated embrace of that claim.

So maybe the paper means to limit the scope of the “President’s constitutional responsibility to protect the nation” in some other way…

More on Zero Dark Thirty

by Deborah Pearlstein

For those following the ongoing public controversy surrounding the film’s depiction of the hunt for bin Laden, two notes. First, the conservative thinktank the American Enterprise Institute hosted a forum on the film featuring three of the former CIA officials centrally involved at the policy level in the “enhanced interrogation” program: former General Counsel John Rizzo, former CIA director Michael Hayden, and former head of the CIA’s National Clandestine Service, Jose Rodriguez. Will Saletan has a summary of the proceedings (and a link to the video) over at Slate. Second, for the New Yorkers among you, Cardozo Law School is hosting a panel discussion of the film on Feb. 11 at 6pm. PBS NewsHour co-anchor Jeff Brown will moderate. The evening will begin with an interview with John Rizzo, followed by a discussion with Mark Bowden, National Correspondent for The Atlantic and author of a new book on the killing of bin Laden; Glenn Carle, retired career CIA officer assigned to conduct black site interrogations; Ann Hornaday, film critic for The Washington Post; and yours truly. RSVP: floersheimercenter [at] gmail [dot] com. Should be an interesting conversation.

Thinking Through the Malian Thicket

by Deborah Pearlstein

I can’t imagine that the DOD-DOJ-DOS-DNI-CIA lawyers assigned to this one are getting much sleep these days. According to the Washington Post:

The Obama administration is considering significant military backing for France’s drive against al-Qaeda-linked militants in Mali…. The loosely affiliated web of Malian militants in the country’s north includes members of al-Qaeda in the Islamic Maghreb (AQIM). But other fighters are longtime foes of the Malian government and pose no direct threat to U.S. interests.… U.S. officials have said publicly that they are evaluating France’s requests for further assistance. But privately, they say that one of the critical requests relates to intelligence that could be used for targeting purposes, said the senior official, who spoke on the condition of anonymity about intelligence and diplomatic matters. Evaluating the request involves “understanding what the French objectives are and really how they intend to go about them and against whom,” the official said.… The official said contingency plans for the use of armed drones were already in place and are being reevaluated. The official would not be more specific.

Hard to figure out from this bare report what’s really being considered here, but it seems that France wants either (at least) U.S. intelligence support for deciding what/whom to target in its ongoing ground operations against Islamist insurgents in Mali, or (perhaps) wants the U.S. to conduct targeting operations itself. (According to the Post, the U.S. government has ruled out sending U.S. ground troops to Mali anytime soon.)

Could the U.S. lawfully engage in armed drone operations in Mali? Where to start (and still get class prepared for tomorrow)? Maybe one international law question, one domestic:

(1) International law. Attacking anything in Mali raises territorial sovereignty concerns. Is there a government there that could lawfully consent to the U.S. use of force in country such that the U.S. wouldn’t risk violating UN Charter article 2 prohibitions against the use of force? Consent, best I can tell, is the only option here. There’s no UN Security Council resolution authorizing the use of force. And I’ve yet to see any media report suggesting we think there’s any kind of direct threat (much less an imminent threat) posed by the Malian militants against the United States. So consent it is, and it would come from, best case, a government that seized power by coup and to which we’ve otherwise cut off military aid. The U.S. still maintains an embassy in Mali (as does Mali in the U.S.), so perhaps consent is not legally insurmountable. But I’d wonder both what the terms of the U.S. aid cut-off were, and whether there’s any precedent for this.

(2) Domestic law. This seems the tougher question. Would, for example, the 2001 AUMF authorize the use of military force here? Recall the AUMF authorizes the use of “necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Setting aside for the moment whether there’s any operational way of distinguishing AQIM folks from the non-AQ-affiliated militants also opposing the Malian government, the AUMF would seem to apply at most to members of AQIM (not the other militants). But does the AUMF even extend to AQIM? According to the analysts at the West Point Combating Terrorism Center, AQIM was born as a guerilla Islamist movement opposing the secular government of Algiers. It became affiliated with Al Qaeda only as a last ditch effort to save its flagging local fortunes, perhaps as many as 5+ years after the attacks of September 11. This brings us back to the thorny and never resolved question of against whom, other than members of the Taliban and the Al Qaeda that attacked us on 9/11, the AUMF permits the use of force. But where it seemed possible to understand the case (based on publicly available information) that AQAP – the Al Qaeda affiliate in Yemen – actually had designs on harming the United States, it’s much less clear to me that AQIM harbors the same objective. Of course the United States should be concerned about AQIM – both the possibility of it establishing a Taliban-like Al Qaeda-friendly government in Mali, and the threat it more plainly poses to our allies France and Spain. But is that the threat Congress was worried about when it passed the AUMF? Hard to see.

(2b) So if not the AUMF, then what? The President’s own constitutional authority to use force (at least until the War Powers Act deadline)? Remind me after class tomorrow to re-read in full that OLC memorandum defending the President’s constitutional authority to use force without congressional authorization in Libya. For now I’ll just note that the sign-off there was pretty case specific. And had something to do with a UN Security Council resolution we surely don’t have this time.

The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to “set the stage” for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilian-populated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval.

If armed drones are really what France is after, hope the OLC folks know where to get late-night take out coffee and croissants.

UPDATE: Complicating matters further, the Times now reports: “Islamist militants seized a foreign-operated gas field in Algeria early Wednesday and took 20 or more foreign hostages, including Americans, according to an Algerian government official and the country’s state-run news agency, in what appeared to be a retaliation for the French-led military intervention in neighboring Mali.”

Having Seen Zero Dark Thirty

by Deborah Pearlstein

Perhaps my favorite scene in the film Zero Dark Thirty comes relatively early on, when the two CIA interrogators around whom the early film revolves arrive at a U.S. military base in Afghanistan to interrogate their next detainees. The soldiers on the base have been keeping a cage of small monkeys (for unexplained reasons), and the scene opens with the lead interrogator – the man shown as directing the torture of a detainee in the scenes before – standing before the monkey cage and feeding them small bits of his ice cream cone. The feeding is conducted beneath a large handwritten sign that says, “Do not feed the monkeys.” The interaction ends in frustration for the interrogator when one of the monkeys successfully swipes the entire cone.

It is a small moment. It is, in the cinematic sensibility of this film, subtle. And for me it very nicely captured the absurd predictability of one of the many things the American experiment with torture wrought. Back in 2006, when my colleagues and I at Human Rights First did the numbers (thanks in no small measure to the volumes of the government’s own documents released under FOIA), there had been more than 330 cases in which U.S. military and civilian personnel were credibly alleged to have abused or killed detainees – cases involving more than 600 U.S. personnel and more than 460 U.S.-held detainees. They included nearly 100 detainees who died in U.S. custody, including 34 whose deaths DOD reported as homicides. At least 8 of these detainees were, by anyone’s definition of the term, tortured to death.

I doubt I’m alone in the world in my metaphorical interpretation of that scene. But I do suspect I’m in a minority for a variety of reasons. Among others, as Amy Zegart notes in yesterday’s Times, in 2007, 27% of Americans surveyed said the United States should torture prisoners captured in the war against terrorism. In Zegart’s August 2012 national poll, that number was up by 14%. In the same period, public opposition to, for example, naked chaining in cold rooms, fell from 79% to 51%. What do movies have to do with it? When my colleagues at Human Rights First studied the impact of media on public perceptions of torture back during the height of the popularity of the TV show “24,” they found that the show had helped reinforce how Americans, including policymakers, thought about torture: as necessary in certain situations. More, interrogators reported that junior soldiers imitated the interrogation techniques they had seen on TV. As Tony Lagouranis, a former U.S. Army interrogator at Abu Ghraib, once put it: “Everyone wanted to be a Hollywood interrogator. That’s all people did in Iraq was watch DVDs of television shows and movies. What we learned in military schools didn’t apply anymore.”

How much should the makers of Zero Dark Thirty care about such things? In her remarks before the Washington, D.C. premiere of the film last night, the film’s director, Kathryn Bigelow, said “we had no agenda” in making the film, and were “not trying to generate controversy.” We were trying, Bigelow said, to tell a story based on firsthand accounts of a decade’s worth of events given to screenwriter Mark Boal in his research. As a director, she said, I make the film. It’s up to the audience to interpret it. (The quotes are around words I’m sure I got exact, the others are the very close paraphrases from my handwritten notes.)

Room for interpretation there is. I walked out at the end of the film last night with two colleagues, who took diametrically opposed views about what they thought it had portrayed about the role of torture in leading to the capture of bin Laden. One thought it clear that the film showed that the CIA had the information or would have had the information about the existence of a courier from a number of sources (more than a dozen), and it wasn’t clear in the film whether all of them had been tortured. The other thought the film portrayed torture as producing the but-for lead that led to the eventual discovery of bin Laden’s compound. I thought it was dizzyingly unclear what the film was trying to say about the facts in this regard. My overwhelming perception of the intelligence efforts depicted in the film was of how fundamentally little the officials depicted knew, and how close to blind they all were, up until the moment bin Laden was shot in the head.

In this respect, I credit the filmmakers for their efforts to depict the human struggle with ambiguity. But while the film was in part about ambiguity – and about an avalanche of other things besides torture – it chooses (after some seconds of black screen and horrifying audio from the victims of 9/11) to lead with torture. The film could’ve started anywhere in telling the decade+ story about the hunt for bin Laden – in a Washington office, on a field of battle, with a family of one of the victims, even in a courtroom – but it features torture front and center. And for an extended period of time. More, the filmmakers chose to give voice to intelligence official characters who lamented the ending of the CIA detention program, but chose not to give voice to any intelligence official character (though such people also exist) who thought, for example, that torture was making it harder to find information they needed. It is not possible to tell a story like this (any story) as if simply presenting information devoid of meaning but for whatever meaning the audience attaches. The first and last time in the film one sees the protagonist intelligence agent Maya, she is a passenger – along for the ride in the first interrogation, being flown off to parts unknown in the final scene. The filmmakers have no such luxury. They are responsible for the story they choose to tell.

So what does responsibility mean? It is beyond obvious they have every right to make the film, exactly as they wish to make it, for whatever reason (or none) they wish to do it. Sure I would have told the torture story differently. (I would’ve also left out the film’s ample number of disappointing, even cringe worthy features. The absurdly overwrought performance in which a senior CIA bureaucrat berates the intelligence team for their failure to find bin Laden, banging his fist on the table like a bad motivational speaker. The greater absurdity of James Gandolfini in a bad hairpiece as Leon Panetta.) What might matter more is something like what happened when Human Rights First went through this back around “24.” My colleagues set up a meeting between the creative team behind “24” and the Dean of West Point and other experienced interrogators. Howard Gordon, an executive producer of “24,” even participated in a training film later developed for military academies that aimed to help troops distinguish the story of “24” from the reality of what they need to do. Far short of that, it would go some distance for the filmmakers to engage more in the public conversation. Bigelow and Boal deserve great credit for bringing their film to this kind of audience in Washington. But from an “aesthetic” point of view, Boal explained, he was not a fan of explaining work. And he did not.

That circumspection is well understandable, even admirable, under many circumstances. This, though, may be one of those circumstances in which more speech would help.

CIA Comments on Zero Dark Thirty

by Deborah Pearlstein

This statement, coming from the Acting Director of the CIA, is perhaps even more remarkable than the Senators’. The press release is posted on the CIA website and is reprinted below.

Statement to Employees from Acting Director Michael Morell: “Zero Dark Thirty”
December 21, 2012
________________________________________
I would not normally comment on a Hollywood film, but I think it important to put Zero Dark Thirty, which deals with one of the most significant achievements in our history, into some context. The film, which premiered this week, addresses the successful hunt for Usama Bin Ladin that was the focus of incredibly dedicated men and women across our Agency, Intelligence Community, and military partners for many years. But in doing so, the film takes significant artistic license, while portraying itself as being historically accurate.

What I want you to know is that Zero Dark Thirty is a dramatization, not a realistic portrayal of the facts. CIA interacted with the filmmakers through our Office of Public Affairs but, as is true with any entertainment project with which we interact, we do not control the final product.

It would not be practical for me to walk through all the fiction in the film, but let me highlight a few aspects that particularly underscore the extent to which the film departs from reality.

First, the hunt for Usama Bin Ladin was a decade-long effort that depended on the selfless commitment of hundreds of officers. The filmmakers attributed the actions of our entire Agency—and the broader Intelligence Community—to just a few individuals. This may make for more compelling entertainment, but it does not reflect the facts. The success of the May 1st 2011 operation was a team effort—and a very large team at that.

Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.

Third, the film takes considerable liberties in its depiction of CIA personnel and their actions, including some who died while serving our country. We cannot allow a Hollywood film to cloud our memory of them.

Commentators will have much to say about this film in the weeks ahead. Through it all, I want you to remember that Zero Dark Thirty is not a documentary. What you should also remember is that the Bin Ladin operation was a landmark achievement by our country, by our military, by our Intelligence Community, and by our Agency.

Michael Morell

Zero Dark Thirty

by Deborah Pearlstein

Today marked the limited release in the United States of the already much heralded new film on the United States’ hunt for Osama bin Laden. I have not yet seen the film and won’t comment on it until I do. But I do want to at least pass along this remarkable open letter issued today by 1 Republican and 2 Democratic Senators regarding the film’s depiction of torture.

December 19, 2012

Mr. Michael Lynton
Chairman and CEO
Sony Pictures Entertainment
10202 W. Washington Blvd.
Culver City, CA 90232-3195

Dear Mr. Lynton:

We write to express our deep disappointment with the movie Zero Dark Thirty. We believe the film is grossly inaccurate and misleading in its suggestion that torture resulted in information that led to the location of Usama bin Laden.

We understand that the film is fiction, but it opens with the words “based on first-hand accounts of actual events” and there has been significant media coverage of the CIA’s cooperation with the screenwriters. As you know, the film graphically depicts CIA officers repeatedly torturing detainees and then credits these detainees with providing critical lead information on the courier that led to the Usama Bin Laden. Regardless of what message the filmmakers intended to convey, the movie clearly implies that the CIA’s coercive interrogation techniques were effective in eliciting important information related to a courier for Usama Bin Laden. We have reviewed CIA records and know that this is incorrect.

Zero Dark Thirty is factually inaccurate, and we believe that you have an obligation to state that the role of torture in the hunt for Usama Bin Laden is not based on the facts, but rather part of the film’s fictional narrative.

Pursuant to the Senate Intelligence Committee’s recently-adopted Study of the CIA’s Detention and Interrogation program, Committee staff reviewed more than 6 million pages of records from the Intelligence Community. Based on that review, Senators Feinstein and Levin released the following information on April 30, 2012, regarding the Usama Bin Laden operation:

• The CIA did not first learn about the existence of the Usama Bin Laden courier from CIA detainees subjected to coercive interrogation techniques. Nor did the CIA discover the courier’s identity from detainees subjected to coercive techniques. No detainee reported on the courier’s full name or specific whereabouts, and no detainee identified the compound in which Usama Bin Laden was hidden. Instead, the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.

• Information to support this operation was obtained from a wide variety of intelligence sources and methods. CIA officers and their colleagues throughout the Intelligence Community sifted through massive amounts of information, identified possible leads, tracked them down, and made considered judgments based on all of the available intelligence.

• The CIA detainee who provided the most significant information about the courier provided the information prior to being subjected to coercive interrogation techniques.

In addition to the information above, former CIA Director Leon Panetta wrote Senator McCain in May 2011, stating:

“…no detainee in CIA custody revealed the facilitator/courier’s full true name or specific whereabouts. This information was discovered through other intelligence means.”
We are fans of many of your movies, and we understand the special role that movies play in our lives, but the fundamental problem is that people who see Zero Dark Thirty will believe that the events it portrays are facts. The film therefore has the potential to shape American public opinion in a disturbing and misleading manner. Recent public opinion polls suggest that a narrow majority of Americans believe that torture can be justified as an effective form of intelligence gathering. This is false. We know that cruel, inhuman, and degrading treatment of prisoners is an unreliable and highly ineffective means of gathering intelligence.

The use of torture should be banished from serious public discourse for these reasons alone, but more importantly, because it is a violation of the Geneva Conventions, because it is an affront to America’s national honor, and because it is wrong. The use of torture in the fight against terrorism did severe damage to America’s values and standing that cannot be justified or expunged. It remains a stain on our national conscience. We cannot afford to go back to these dark times, and with the release of Zero Dark Thirty, the filmmakers and your production studio are perpetuating the myth that torture is effective. You have a social and moral obligation to get the facts right.

Please consider correcting the impression that the CIA’s use of coercive interrogation techniques led to the operation against Usama Bin Laden. It did not.

Thank you for your assistance on this important matter.

Sincerely,

Dianne Feinstein
Chairman
Senate Select Committee on Intelligence

Carl Levin
Chairman
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

John McCain
Ranking Member
Senate Armed Services Committee
Ex-Officio Member of the Senate Select Committee on Intelligence

Al Qaeda in IKEA

by Deborah Pearlstein

As loathe as I am to call any attention to Eric Posner’s latest over on Slate, his piece engaging the Jeh Johnson speech (about the notion that the Al Qaeda that attacked us on 9/11 might someday be defeated) is such a blast from the past it’s hard to resist. Turns out the President has really been detaining everyone under his Article II power all along; that “ordinary law enforcement” is useless against terrorism (guess someone forgot to tell the FBI and its 300-some indictments related to jihadist terror or national security charges since 2001); and that one of two key world changes in recent years that has made terrorism so much more dangerous is terrorists’ ability to miniaturize weapons (but see footnote 50 here). Plus ca change.

For now, let’s focus on the key point of Johnson’s speech: the suggestion that the effective dismantlement of core Al Qaeda might someday mean the AUMF no longer authorizes the President to continue detaining people on the grounds that we are in a conflict with Al Qaeda. Eric begins explaining the debate as follows: “[As civil libertarians wearing 'rose colored glasses' would have it,] [t]he AUMF triggered the president’s commander-in-chief power, which enables him to detain enemy combatants indefinitely and kill them with drones and other weapons….”

As an initial matter, hard to figure out what Eric means, “the AUMF triggered” the President’s Commander-in-Chief power. The President is CINC in wartime and not, and whatever powers Article II of the Constitution provides him (more on which anon) I figure they’d exist whether Congress “triggers” them or not. More to the point, it would be a lot easier just to describe the Jeh Johnson argument – the position taken not only by Jeh, but by the President, the Congress, and the federal courts – as what it actually is, namely, that the AUMF is the source of authority for at least a substantial chunk of the detention and targeting we’ve been doing (and certainly for the detentions at Gitmo).

In any case, the AUMF is I guess mostly beside Eric’s point. As he continues: “[E]ven if al-Qaida and its affiliates are destroyed, it will make little difference for the president’s authority to use military force against future terrorist threats. The president will retain his authority under the Constitution, Article 2 of which has been interpreted to give the president the power to use military force against security threats even in the absence of congressional authorization.”

Well, it’s true no doubt the President has some constitutional powers of national self-defense; indeed, the UN Charter (among treaties the U.S. has ratified) has a few things to say about states’ inherent right to repel such threats, provided they are, among other things, imminent. But I’m not sure I’ve ever heard quite so sweeping a description of the President’s use-of-force Article II power before – a power that lets the President do whatever he wants “against security threats” writ large? There is no support in domestic law for the proposition that the President has the power to use force against anything he deems a “security threat” anytime without authorization, and negative support in international law for the proposition that such a use of force (without, for example, a requirement of imminence) is lawful. (Harder still to see how such a power to repel imminent threats could support a decade-long detention program, for example, without congressional authorization. Anyway, again, I kinda thought we’d settled that.)

But one could easily get distracted addressing all the sweeping assertions about legal doctrine and security reality and miss the broader point. Namely, Eric thinks the ever-changing problem of terrorism is here to stay. With this, I agree. Don’t think I know anyone who thinks otherwise. But most folks – the General Counsel for the Secretary of Defense, among others – also think that the President’s powers to address the threat do and should have limits (statutory and otherwise) as a matter of law. So the question I took Jeh to be asking is what happens when, as will someday be the case, the particular terrorist group that attacked us on September 11 – to which one of those authorizations is, by its terms, tied – is effectively no more? What security policy best serves our interests in minimizing the forever kind of threat then? Knowing that our laws and practices influence the behavior of allies and enemies around the world, what powers do we want the U.S. government to have long term?

Here, too, hard at first to tell whether Eric’s response is more about security policy or statutory interpretation. He writes: “[A]lthough Johnson notes that the ‘core’ of al-Qaida has suffered a significant lashing, its affiliates are alive and well, especially in the Middle East, where they appear to be flourishing. The AUMF identifies the affiliates of al-Qaida as the enemy, as well as al-Qaida itself. As long as those affiliates remain in existence, the United States will be at war with them. And because ‘al-Qaida’ has become a kind of brand that any group can lay claim to, al-Qaida affiliates will be around as long as radical Islam is.”

I tend to doubt Eric means this mostly as statutory interpretation, given his view that the AUMF doesn’t much matter for purposes of the President’s power anyway, and given that as a matter of interpretation, the courts have already held the AUMF authorization extends to “associated forces” (as informed by international law), not “affiliates,” whatever that means. There’s also the not insubstantial conceptual problem of fitting terrorist groups into the kind of unified hub and spoke-type organization the AUMF (and international law) would seem to contemplate where the hub no longer exists. (The white petals of a daisy fall to the ground in disarray if the flower loses its yellow core.) It is also facile (and as best I can tell sometimes wrong) to imagine that just because another group of radicals has claimed the franchise name “al Qaeda” they in fact have any association with the al Qaeda that attacked us on September 11. (Just because I set up a coffee stand and hang up a shingle saying “Starbucks” doesn’t mean I have any affiliation with Starbucks. Indeed, sometimes it’s quite the contrary.) None of this is for a moment to suggest that all danger disappears along with ‘core’ Al Qaeda. It is only to point out that it is difficult to understand an idea of “associated forces” if there is no longer an extant group they are associated with.

So let’s set the law aside for a moment and take Eric’s point for what I think he means it to be – one of security policy. A policy that says, in essence, whatever and wherever the “radical Islamist” threat du jour, the best (only?) way of dealing with them is to call them all al Qaeda and target and detain them henceforth and forever. This would certainly be one way to answer the policy question. But Eric’s essay offers scant support for concluding it’s the right one. Meantime, security policy experts like (Iraq counterinsurgency guru) David Kilcullen have argued forcefully that lumping together relatively disparate terrorist groups is exactly the opposite of what would be effective if one’s goal were to undermine local insurgents’ potentially more far-reaching goals.

What Jeh’s speech very usefully opened is the possibility that it is time to design a post-crisis, post-emergency, post-war counterterrorism strategy going forward. One that is smarter than the ad hoc response we cobbled together in a hurry a decade ago, that takes account of lessons learned, and that has built in at its core (to use a word) a commitment to operating within a system of law. That is, a policy that includes law and legal constraints at the outset, but doesn’t let legal wrangling obscure the need for starting with a strategic goal.

Jeh Johnson and Harold Koh to Step Down

by Deborah Pearlstein

In case you missed it, the past week saw the announcements that both Pentagon General Counsel Jeh Johnson and State Department Legal Adviser Harold Koh would be stepping down from the Obama Administration at the end of the year. Johnson reports he’ll be returning to the private sector; Koh will head back to his professorship at Yale Law School.

The departures of course create critical vacancies in two top administration legal posts, but I think not too much significance beyond that. Both Johnson and Koh served for essentially Obama’s entire first term – an admirably lengthy tenure given the enormous personal wear and tear that come with these kinds of jobs. That Johnson’s resignation announcement followed close on his important speech at Oxford contemplating limits on the duration of the U.S. conflict with Al Qaeda (much discussed at the time, e.g., here) is perhaps noteworthy. But far more likely than there being any causal relationship between one event and the other – Johnson’s speech inevitably went through ample interagency review before it was given – it seems best to understand the Oxford speech as Johnson’s valedictory address. A useful reminder that the AUMF (among other laws) has a shelf life his successor will sooner or later have to confront.

Still More End Game

by Deborah Pearlstein

Look much beyond the blogosphere and you’ll be hard pressed to find many headlines about Jeh Johnson’s important speech at Oxford last week.

But important it was. Here are three more of the reasons why I think so.

1. It is difficult to overstate the depth of the scholarly consensus that existed (before last week) around the view that when Congress authorized the use of armed force against “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided” the attacks of September 11, the “war” thus undertaken was one without identifiable end. That is, the view has been that not only would it be impossible in advance to identify when the use of armed force would cease – it has of course never been possible at war’s beginning to identify on which definite date war will end – but there would be no set of events, circumstances, or conditions that could be imagined, the occurrence of which might bring about a recognition of the political, or in any objective way factual, end of the war. (I’ll spare blog readers the lengthy set of string cites in support of this proposition I had occasion to assemble for a research paper over the summer, but the list easily included sources from the political left, right and center.) That consensus no longer exists. Both on panels at the ABA’s review of the field of national security law conference over the weekend and in reading some of the other blog entries since, it now seems clear that some combination of Jeh Johnson’s speech and an accumulating set of facts on the ground has made it possible to talk about an end of the war – and the consequences for detention, targeting, and much else, that flow from that eventuality.

2. As I’ve mentioned elsewhere, e.g. here, and beyond the critical policy implications attendant the end of war (like how to reintegrate the 2.5 million-some returning veterans who deployed in one operation or another in the past decade), the authorization for use of military force is far from the only statute that ceases to have effect (or the same kind of effect) when “hostilities” are over. Take private security contractors. Under the Federal Tort Claims Act, private security contractors implicated in misconduct in combatant activities are immune from tort suits for a wide swath of activities, only if those activities are performed “during time of war.” What fraction of the $100 billion security contractor industry is potentially touched by this? Could be worth a little of someone’s time to find out. Either way, there’s an important broader point here as well. How one determines when a conflict (hostilities, war – the words, and often the applicable legal standards, vary) is over depends enormously on in what legal context the question is asked.

3. Speaking of how one determines when conflict is at an end, there is also the question of who makes that determination. Over the past 200+ years, the Supreme Court has had to determine when hostilities were over for purposes of determining the applicability of federal statutes of limitations, criminal jurisdiction and sentencing, tort and fraud liability, authorizations for various government activities, and yes, even the applicability of what we now call the international law of armed conflict. Sometimes the Court has looked to particular statements or actions of the President or Congress. Sometimes it has made the determination essentially on its own (using, for example, standard tools of statutory interpretation). Never has it declined to interpret a statute with an end-of-war condition on the grounds that it presented a nonjusticiable political question.

More on the End Game

by Deborah Pearlstein

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense).

“War” must be regarded as a finite, extraordinary and unnatural state of affairs. War permits one man – if he is a “privileged belligerent,” consistent with the laws of war — to kill another. War violates the natural order of things, in which children bury their parents; in war parents bury their children. In its 12th year, we must not accept the current conflict, and all that it entails, as the “new normal.” Peace must be regarded as the norm toward which the human race continually strives.

The habit of characterizing the United States’ conflict with Al Qaeda as a war without end – of detention within that war as indefinite, of the current pace of targeting operations as something the United States will, now having embarked upon it, never abandon – is something all sides of the legal debates have done, in and out of government. Johnson’s speech should, I think, lead us all to question the habit of accepting that assumption.