John Bellinger: If the War Is Illegal, Just Change the Law

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John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

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  1. SirLurksAlot says:

    if it worked for warrantless wiretapping, it will work just fine to extend the AUMF for evah. only thing that’ll stop the 4ever war is forced conscription, which is not going to happen.

    • Gitcheegumee says:

      Charlie Rangel had been talking about reinstatement of the draft for some time now.

      With his forthcoming censure on ethics violations, I doubt he’ll be saying anymore about conscription.

      • bmaz says:

        Can’t see why a little ‘ole censure would stop Rangel from saying or doing anything; the bigger issue is no one was listening to him anyway.

        • Gitcheegumee says:

          the bigger issue is no one was listening to him anyway….

          Perhaps those who were attuned to that particular “dog whistle” were tired of hearing that old dog bark.

    • thatvisionthing says:

      Empire collapse might do it — or the whole world goes bankrupt at once (did that already happen?) We are hollow.

  2. radiofreewill says:

    The whole World knows that Bush chose a War of Aggression and ordered Torture.

    Bellinger’s just a self-serving toady, putting more lipstick on that same pig, so we don’t have to look back at the crater where our Honor used to be…

  3. b2020 says:

    “the targets include a heck of a lot of grunts and many people with terrorist ties”

    Weak sauce. The targets in Pakistan are predominantly Taliban that are challenging the Pakistani government, in an explicit policy to “bleed white” the domestic opposition feeding the uprising. Any AQ connection is incidental. On top of that, there is probable cause that the US is also “executing” wish-hit lists from various factions within the Pakistani government and security apparatus as part of a “Don’t really ask, don’t often tell” quid-pro-q

  4. b2020 says:

    uo of drone strikes that are officially not sanctioned and, according to Pakistani spokesmen, do not really happen.

    Plus, in keeping with Afghanistan/Iraq tradition, there is probably a sprinkling of people that were promoted to “targets” simply because there was money to be made in pointing at some convenient bystander.

  5. b2020 says:

    In other words, large-scale drone attacks against “profile” matching guys with beards, AK-47 and pick-up trucks are Obama’s way of facilitating – or, in Pakistan and Yemen, preventing – “regime change”. In ten years from now, are there going to be dozens of strikes in dozens of countries every day?

    • person1597 says:

      Bellinger on Wikileaks:

      In theory, our Department of Justice could charge Mr. Assange for violating U.S. criminal laws which prohibit the unauthorized communication of information relating to U.S. “national defense.” However, I believe the Department of Justice is unlikely to do so because any effort to prosecute a member of the press would raise very complicated issues under the First Amendment of the U.S. Constitution, which guarantees freedom of the press.

      Should be interesting to see what he really thinks once the beans are spilled… soon…

  6. JohnLopresti says:

    Citing from one of Bellinger*s junkets to Switzerland in 2006:

    Bellinger led a team of more than two-dozen senior U.S. officials to Geneva, Switzerland, May 5-8, to present oral and written reports to the U.N. Committee Against Torture…**We are disappointed, despite our extensive work to provide materials to them, that they did not take advantage of that and that they ignored a number of the materials that we gave to them,** John Bellinger, legal adviser to the State Department, told reporters May 19.

    Here is a link to the text of the September 18, 2001 joint resolution authorization to use military force.

    While trotting around Nato countries droning the moderate rendition of Rice*s oaths that *USA doesn*t torture*, Bellinger probably covertly bemoaned the unripeness of attempting to redefine the international law of war to include modern robotic and cyber sorties. Arms treaties might begin to review this stale part of rules of conflict, but it will take gifted talent in the State Department to move this squib downfield. And an affirmatively engaged president.

    An abstract of a Barron and Lederman HLawRev article is there; check the links to both documents in the series published January and February 2008, each about 1MB; the series seeks to provide historical, legislative, and caselaw background concerning the precise dynamics of modern mobilization of the military with illustrations of the degrees of congress participation and executive discretion.

  7. donbacon says:

    The AUMF isn’t required — the War Powers Act will serve as long as the President reports to Congress every six months.

    The Constitution:

    Section 8 – Powers of Congress — The Congress shall have Power — To declare War

    Has been negated and superceded by The War Powers Act of 1973:

    Sec. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities
    Sec. 4 (a) In the absence of a declaration of war , in any case in which United States Armed Forces are introduced —
    (c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situations as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once very six months.

    • tjbs says:

      Unless that’s an amendment , I don’t care how long we’ve been doing it this way, it’s unconstitutional or we’ve abandoned the constitution already.

      • eCAHNomics says:

        My 19 is very similar to yours. So I just sat down with a martini & would be happy to offer you same. You could come sip by me, too, as I also just lit the fire in the fireplace. Very cozy.

        • tjbs says:

          Thanks for the invite, the fire’s burning behind me so we can just have a mind meld of pleasures of a fire to calm down with. Enjoy.

          I already have a Martini IV drip trying to deal with a constitutional government not following what we agreed to do constitutionally..

  11. tjbs says:

    The constitution used to be the supreme law of the land overriding laws in conflict with it.

    Article one congress “To declare war”not congress or the president or for that matter, the supreme court .

    An act can’t amend the constitution or else why would the founders include Article 5 concerning the amendment process. AUMF doesn’t pass the amendment smell test.

    Or was Article 5 repealed ?

    Of course we could present this to the traitors of the supreme court to determine original intent.

  12. eCAHNomics says:

    I’m kinda surprised O’s admin is making any bow to doing things “legally,” even with made-up or retrospective law. So far they’ve been happy to do everything extralegally.

  14. earlofhuntingdon says:

    Of course, Bellinger would do so in an op-ed in the Washington Post, the rightwing journal of record for those who can’t count.

  16. rosalind says:

    ot: highlight of the Matt Taibbi book salon is Matt explaining David Gergen’s “running for the smelling salts” reaction to Matt’s dropping the f-bomb on Gergen’s idiot ramblings:

    Hilarious story: Gergen apparently mistook me for Matt Bai of the New York Times. That is why he kept expressing surprise at my opinions. Apparently he expected less hostility from a NYT reporter!

    he followed later with:

    …later in the day, when my editors and I figured out what had happened, we were all laughing hysterically — somewhere that night David Gergen was telling someone what an asshole Matt Bai is.

    that is going to bring me great happiness for many days…

    • thatvisionthing says:

      “Why do you seek gold when our land has such lovely flowers?”

      — Last words of Peru’s Inca ruler, Atahualpa, before being strangled by Francisco Pizarro’s men.

      • radiofreewill says:

        My favorite version of Cortez the Killer is by the band Built to Spill, off their ‘Live’ album – 20 minutes of bliss…check it out for free at rhapsody.

        …didn’t even give Peace a chance…just trampled right over it in the name of a divisive, murderous Myth backed by Money…and said that it was was ‘Good’…

        …with priest/lawyers just like Bellinger ‘blessing’ the killing every step of the way…

        • thatvisionthing says:

          @ 5:00:

          Who’ll be the one to lead this world?
          Who’ll be the beacon in the night?
          Who’ll be the one to lead this world?
          Who’ll be the beacon in the night?
          Who’ll be the one to lead the nations?
          And protect God’s creations?

          Haunts me. Coulda been Obama. But it wasn’t.

        • radiofreewill says:

          We’re on common ground with Neil!

          It’s good to see him still touring, too.

          Peaceful Valley is new for me – thanks for sharing!

  20. Mary says:

    I suppose coming from someone who envies bulimics their reverse peristalsis skills everytime I hear names like Bellinger and Goldsmith and Comey, this should be appropriately discounted,

    BUT

    Bellinger knew for a fact that the AUMF was being grossly exceeded as of August of 2002, when he was informed in writing of the fact that a boatload of people who were not affiliated with al-Qaeda, not affiliated with the Taliban, not even mujahadeed or even combatants in any way, shape, or form were being shipped from Afghanistan in violation of the Geneva Conventions and being tortured to order in GITMO.

    IIRC, his response was to handwring like a woman who just found out she’d been soaking in Palmolive in front of Gonzales and Addington, then go home and sleep soundly after Addington told him that Bushies weren’t going to spend time looking back.

    When I think of guys like Bellinger and Comey, and then think of someone like Bahtiyar Mahnu, the Chinese Uighur who turned down his offer of freedom to stay with his brother who had been tortured into mental breakdown on Bellinger’s watch – well, let’s just say NO, I don’t think I can buy the premise that he’s a lawyer who’s done his homework.

    So what, NOW he is suddenly concerned?

    God bless his little soul – his very very very little soul.

    And a belated happy Thanksgiving to all of the firepups.

  21. thatvisionthing says:

    We’ve been fighting the Forever Whoever War since at least 2005

    I don’t know, the Onion pegged it in 2001:

    “U.S. Vows To Defeat Whoever It Is We’re At War With
    September 26, 2001 | ISSUE 37•34

    WASHINGTON, DC—In a televised address to the American people Tuesday, a determined President Bush vowed that the U.S. would defeat “whoever exactly it is we’re at war with here.”

    “America’s enemy, be it Osama bin Laden, Saddam Hussein, the Taliban, a multinational coalition of terrorist organizations, any of a rogue’s gallery of violent Islamic fringe groups, or an entirely different, non-Islamic aggressor we’ve never even heard of… be warned,” Bush said during an 11-minute speech from the Oval Office. “The United States is preparing to strike, directly and decisively, against you, whoever you are, just as soon as we have a rough idea of your identity and a reasonably decent estimate as to where your base is located.”

    Added Bush: “That is, assuming you have a base.”

    Bush is acting with the full support of Congress, which on Sept. 14 authorized him to use any necessary force against the undetermined attackers.

    • thatvisionthing says:

      Standing in opposition to Bush and Congress is a small but growing anti-war movement. During the president’s speech Tuesday, two dozen demonstrators gathered outside the White House, chanting and waving placards bearing such slogans as “U.S. Out Of Somewhere”

  22. thatvisionthing says:

    I love this guy:

    MIKE GRAVEL: …that’s our whole foreign policy. You’re talking about American imperialism here. And we had no right to even go there. It’s their country, not ours.

    Really, what we’re all talking about is how to do a mistake competently. That’s really what this is.

    We made a mistake going in, and so we’re now trying to figure out how you can do this conflict. You can’t. It’s a mistake. You walk away.

  23. thatvisionthing says:

    Re 2005 vs 2001 as the start date for the Forever War…

    on CNN on the afternoon of 9/11, Wesley Clark recommended preemptive measures henceforth…

    WESLEY CLARK: …we have to also ask ourselves, could we have done more, if we’d been willing to take greater risks, been willing to take more extraordinary measures earlier to take some of these groups and these individuals at their word that they had declared war on us and they deserved to be taken seriously and they merited some preemptive action?

    CNN AARON BROWN: And just perhaps stating the obvious here, when you talk about preemptive action – first of all, you’ve got to be able to find the people you’re taking the action against. Do we know where the right people are so that if the country is going after these people they get the right people?

    WESLEY CLARK: Well I think that’s always the problem. And there will always be a certain degree of uncertainty, and there’ll be a certain degree of concern about this. The best way to handle any international terrorist organization is to arrest its leaders, present the evidence, and have them tried in a court of law, and that certainly is the way anyone would prefer to deal with this. But perhaps in some cases it’s not possible to do that, or it’s not possible to do that quick enough. We’ll have to ask those questions in the aftermath. It’s not simply about intelligence. It’s also about acting on intelligence.

    CNN AARON BROWN: Ultimately, sir, this is not just a military or intelligence question, this is a core political question. It really has to do with how we see ourselves as a country, whether we are willing to take the risk that some innocents may be, may perish because of what we as a country do, and that’s a political question for the country to deal with.

    WESLEY CLARK: It’s a profound political question.

    (Ends justify the means, let’s go!) (Is this one of the scripted generals in the military-media complex thing?)

    • thatvisionthing says:

      And former Secretary of State Lawrence Eagleburger was salivating for the dark side:

      CNN 9/11 video link

      CNN JUDY WOODRUFF: Secretary Eagleburger, so many people we’ve been– we’ve been talking to a lot of people today. It seems to me that many Americans now are going to want to strike back, to get back as soon as we can and as hard as we can at whoever was behind this. How realistic is that?

      LAWRENCE EAGLEBURGER: Oh boy, that’s a very tough question– but it won’t be quick, I think. It’ll take us some time to organize ourselves, try to figure out who was responsible for this, although I must say, by the way, that’s less of a concern to me than it will be to a number of others. We know who most of the terrorists are. We may not know which ones did this, although it would have to have been very, very well organized and very well financed. But “getting back at” almost is the wrong way, I think, to put this, though that’s what a lot of people will want. What I think we need now to understand is this really is a war with terrorism and we need to be prepared to act as if we are at war. And that does not necessarily mean that you have to strike back only at those who you know were the perpetrators of this thing.

      CNN JUDY WOODRUFF: Well what does–

      LAWRENCE EAGLEBURGER: We know a lot of terrorists around the world, and we know a lot of governments have financed and supported terrorism, and you start with Osama bin Laden, I suppose, and you start with Afghan.

      CNN JUDY WOODRUFF: Well, what do you–what do you do?

      LAWRENCE EAGLEBURGER: Well, what you do, what you do is strike at them militarily. I know this is going to sound awful, but my point is there’s only one way to begin to deal with people like this is you have to kill some of them, even if they’re not immediately, directly involved in this thing. We do know that the Taliban and the government of Aghanistan has mothered Osama bin Laden for years. They need, they need to be hit — either they need to be hit or they need to understand very quickly that they have got to stop supporting terrorism and then make it evident that they’re stopping the terrorism.

      CNN JUDY WOODRUFF: So you’re not talking about a long, drawn-out investigation as they had with Pan Am 103 over Lockerbie.

      LAWRENCE EAGLEBURGER: I hope not.

      CNN JUDY WOODRUFF: A long, drawn-out effort to extradite possible suspects…

      LAWRENCE EAGLEBURGER: I hope not. I hope not. Because if that’s the case, you saw what happened with Pan Am 103. I mean, by the time it was all done, first of all, many people had lost all interest in the subject. This is, this is an act of war. When they compare this to Pearl Harbor, I don’t think they’re wrong, in the sense that it’s a surprise attack, and I suspect if we are wise about this, Pearl Harbor brought the American people together and made us recognize we had something we had to deal with. Perhaps this will do the same thing for all of us.

      “The grim fact is that we prepare for war like precocious giants, and for peace like retarded pygmies.”

  24. skepticdog says:

    I see no evidence that just Republicans want war powers. The Democrats seem to enjoy the “game” just as much as the Republicans. Don’t worry about the law, that’s just for the rubes.

    • thatvisionthing says:

      I hear Scott Horton on Antiwar Radio podcasts say that the Republican-Democrat divide to the death thing has it wrong — instead it’s really a war party-antiwar party thing. Caucus up, I’m going antiwar.

  26. klynn says:

    Marcy, thanks for a great post.

    We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

    The US citizens are funding a Forever War which will eventually result in funding a war against ourselves as we become an ultra police state.

    And, we are funding the take over of our property rights as well, as six big banks rule the nation.

    This is a perfect storm for destruction of individual rights.

    On the subject of individual rights, I recommend everyone go read this diary by wendydavis.

    If you appreciated the Taibbi book salon yesterday, this diary is a must read.

  27. klynn says:

    Hey Marcy, isn’t Bellinger associated with the law firm Arnold and Porter?

    Isn’t Arnold and Porter a firm big on antitrust cases?

    This just has me wondering if making a war legally sanctioned is simply a way to continue to launder money between DoD and Fannie and Freddie. I know this idea sounds crazy…I’ll go get more tin foil and sit in the corner…

  28. phred says:

    OffT: bmaz, once you’ve had yer coffee this morning, we could do with another trash post (please : )

    OnT: I’m more than a little amused that Bellinger is even bothering to go through the motions here. Our political and corporate betters have been breaking the law with total abandon and impunity for years. This smacks of window dressing, gotta make the rubes think we still have some semblance of the rule of law in this country. Pfft. It is abundantly clear that we do not.

  29. klynn says:

    EW, (OT)

    Did you go read wendydavis’ diary? It has a great Ratigan clip of the Marcy Kaptur interview on the foreclosure crisis. Kaptur does the best job walking listeners through the reality.

    Boy, Kaptur and Taibbi at an event on this issue would be powerful.

    Thanks for all you have been writing on the foreclosure crisis. The banks do not want the general public to understand the fraud.

  30. MadDog says:

    OT – Via Reuters:

    Text of State Department letter to Wikileaks

    And who is going to be doing the deed once again? From the letter:

    …It is our understanding from conversations with representatives from The New York Times, The Guardian and Der Spiegel, that WikiLeaks also has provided approximately 250,000 documents to each of them for publication, furthering the illegal dissemination of classified documents…

  32. fatster says:

    El Pais, Le Monde, Speigel, Guardian & NYT will publish many US embassy cables tonight, even if WikiLeaks goes down
    less than 10 seconds ago via web

  33. Mary says:

    Since this is my drive by day and I may not get back for a bit – here’s an OT headsup.

    Justice Stevens is going to have a long, detailed essay up in the New York Review of Books Dec 23 issue.

    The essay is previewed in this NYT piece:
    http://www.nytimes.com/2010/11/28/us/28memo.html?src=me&ref=general

    (“Justice Stevens’s death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening”)

    In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

    Good thing they are clear that he’s writing about capital punishment, not the Bush/Obama views on law and foreign policy. I guess something that’s skewed towards drone bombing and forever detentions and coverups of mistakes with more torture, international threats and assisted suicides isn’t all that different at its roots, though.

    In any event, Justice Stevens deserves a much broader dissemination of his views and insights than the morally and logically impaired members of the Polawtician sect, like Goldsmith and Bellinger. I hope he gets it.

    • thatvisionthing says:

      Hi Mary, see fatster @ 26 — Justice Stevens is going to be on 60 Minutes too, Sunday, Nov. 28, 7 p.m. ET/PT.

      I wish he hadn’t retired. How could he?! He had the best line in Bush v. Gore:

      One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

      Damn.

  34. Mary says:

    Thanks tvt – nothing gets past fatster ;)

    It is haunting – I never really had the faith, but I saw so many who I respected who did, that I had the hope. Now, not so much.