#144 / The "Forever War"

Jennifer Daskal is an assistant professor at American University Washington College of Law. She has written an important Op-Ed column, which appeared on the editorial pages of The New York Times on April 27, 2016. I urge anyone reading this blog posting to track down that column. Daskal's column was titled, "Obama's Last Chance To End the 'Forever War,'" and the image above ran with the column. You can click on the link to read what Daskal says. 

On April 26th, the day before Daskal's column appeared, my UCSC Legal Studies class on "Privacy, Technology, And Freedom [LGST 196]" discussed the exact topic that Daskal addresses. The class did so by focusing on Hedges v. Obama, a case decided on July 17, 2013 by the United States Court of Appeals for the Second Circuit. Click on the Hedges v. Obama link if you'd like to enmesh yourself in an extensive discussion of Article III "standing" requirements, a discussion that is very important, but that is a bit hard to follow. 

The Hedges case was an effort to end the "Forever War" through court action, but the court declined to act. How the court came to its conclusion reveals a great deal about how our judicial system works. Hedges is, thus, a wonderful case to "teach some law" to Legal Studies students. In short, the court decided in Hedges that none of the various plaintiffs had "standing," which meant that the court was not able to make a ruling on the legal and constitutional issues that the plaintiffs raised. 

Those not especially interested in the intricacies of judicial decision making, and the "standing" requirement in particular, might still be quite interested in how our current, "Forever War" came into existence, and what, if anything, might ultimately stop it. What follows is a synopsis, and pretty much tracks the discussion my class had on April 26th. 

Let's start with the 9/11 attacks. 

On September 18, 2001, exactly one week after the September 11 attacks on the Twin Towers and other targets, the Congress passed, at the President's request, a piece of legislation that was NOT a "Declaration of War," but that was called, instead, an "Authorization for Use of Military Force (or AUMF)."

Here is the full text of the AUMF, as enacted by Congress on September 18, 2001:

[T]he 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.

Since the 9/11 attacks could not really be categorized as an "Act of War" by a hostile power, in the way, for instance, the attack on Pearl Harbor was categorized, Congress provided this "authorization" as a kind of substitute Declaration of War, to authorize the President to use military force against those responsible for 9/11. Note these features of the AUMF:

• The President was authorized to use all necessary and appropriate force (and what was "necessary and appropriate" was, implicitly, left to the judgment of the President). That's a pretty unlimited grant of authority, and clearly, because of the title, includes an authorization to use "military" force. 

• Not only does the President get a virtually unlimited right to use military force, he gets the ability to "determine" the nations, organizations, or persons against whom that military force can be applied. All the President has to do, before using military force, is to "determine" that a nation, organization, or person either "planned, authorized, committed, or aided" the 9/11 attacks, or "harbored" any such organization or person. Again, that grant of authority gives the President a broad right to use any force he thinks is necessary and appropriate against any nation, organization, or individual that the President finds is in some way responsible for the 9/11 attacks.

• The "purpose" for which this grant of authority is given to the President is actually quite specific. That purpose is to prevent any future acts of international terrorism against the United States by the same nations, organizations or persons who carried out the 9/11 attacks. 

When one carefully considers the AUMF, it can be seen that the authority provided to the President is both "unlimited" and "limited" at the same time. Congress is essentially telling the President to "go get them," and by "them" Congress means, very specifically, anyone responsible for the attacks on  9/11. The "them" against whom the President is authorized to use virtually unlimited force is actually spelled out with particularity. While the President gets to "determine" who meets this test, the use of force is authorized only against "nations, organizations or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

This last limitation is key. The President's authority to use military force is only good against nations, organizations, or persons who were, in some way, involved in the attacks on September 11. This is not an unlimited grant of authority to use military force against "terrorism" in general. 

Furthermore, the explicit "purpose" of the AUMF is to prevent any future acts of terrorism by the very same nations, organizations, or persons that carried out the 9/11 attacks. The AUMF does not provide any authorization to the President to use military force against terrorism at large. 

Because the AUMF provides the President with the authority to go ofter only those who were, in some way, involved in the 9/11 attacks, it cannot not, quite clearly, serve as the foundation for a "Forever War," aimed at "terror" in general.

There is, though, a law that does provide for a "Forever War," and for the so-called "War Against Terror." That law that was promoted and signed by President Obama. Here is how the AUMF metastasized into a law that justifies a general "War Against Terror" that can, and almost inevitably will, go on indefinitely. Ten years after the enactment of the AUMF, on New Year's Eve, December 31, 2011, Congress passed and President Obama signed the National Defense Authorization Act (NDAA). Again, it was President Obama who sought and signed this update of the AUMF. Section 1021 of the NDAA does several things: 

• First, in the NDAA, Congress affirms the AUMF, but then explicitly states that the military force authorized  by the AUMF "includes the authority for the Armed Forces of the United States to detain covered persons ... pending disposition under the law of war." 

• The "covered persons" named in Section 1021(b)(1) include "a person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks." Nothing much new here, in other words. The President is still authorized to go after those responsible for 9/11, and can use the military to detain any person involved in 9/11 either directly, or by way of aid and assistance.

• However, there is something radically new in the NDAA, in Section 1021(b)(2). In that section, the right of the military to detain persons is expanded to include "a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

What has happened? The AUMF authorized a virtually unlimited amount of military force, but ONLY against those determined to have been involved in 9/11. 

Under the NDAA, the authorization to use a virtually unlimited amount of military force remains (and is explicitly expanded to include the right to what amounts to an indefinite military detention). That force, however, is NOT limited to those involved in some way in 9/11. Under Section 1021(b)(2), this force can be used against persons and organizations who "are" (present tense, not past tense) in "hostilities against the United States."

It is this provision, in Section 1021(b)(2), that gives us the "Forever War." Are there "forces" that "are engaged" in "hostilities against the United States or its coalition partners?" Yes, and there are more and more of such "forces" every day. Every time the United States launches a drone strike, or enters onto a battlefield in Syria, or drops a bomb and blows something up, the "forces" that are hostile to the United States (or its coalition partners) grows. We are engaged in a never-ending conflict, and the NDAA authorizes the military to put people into indefinite military detention as long as this "Forever War" endures. 

Daskal wants President Obama to seek to reduce his own authority, as that authority is now encompassed in both the AUMF and the NDAA. 

I just say "good luck." Presidents don't, generally, give up their powers. The people have to take those powers back.

Daskal, in fact, acknowledges this point, and I think she demonstrates a sense of urgency. Her article is worth reading. 

The Constitutional rights of ordinary people are very much at risk, from any current or future President who might "determine" that the armed forces should detain a United States citizen that the President thinks has "substantially supported" a person who may have committed a belligerent act that the President decides was hostile to the United States. Any such military detention of a U.S. citizen, or any other person, would be for an indefinite period, and under the current court cases, the person detained would have no right to counsel, no right to a speedy trial, no right to confront his or her accusers, and no right to petition the courts for habeas corpus. 

"Forever" is a long time.

It would probably be good to get those Presidential powers rescinded sooner rather than later, particularly when we think about some of the folks who might end up being our next President. 

Image Credit:

http://www.nytimes.com/2016/04/27/opinion/obamas-last-chance-to-end-the-forever-war.html