Time to End the Iraq War

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In his speech on Thursday, President Obama said,

America is at a crossroads. We must define the nature and scope of this struggle, or else it will define us, mindful of James Madison’s warning that “No nation could preserve its freedom in the midst of continual warfare.”

Talking about the way the choices we make about war affect the freedom on which our way of life depends, Obama called for tweaking and, ultimately, repealing the September 18, 2001 Authorization to Use Military Force.

I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate. [my emphasis]

And yet … he said nothing about the 2002 Iraq War AUMF, the one he ran for President against in 2008.

Last we heard, remember, Rand Paul tried to repeal the Iraq AUMF just as the last US forces were being withdrawn in November 2011. That effort was voted down definitively, 67-30. 18 months later, that AUMF is still on the books.

A great speaker recently said said that “Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” I’m all in favor of repealing the 2001 AUMF. But why not practice repealing AUMFs first, by formally ending the Iraq War that should never have been started?

 

Jahn Does Complete Reversal, Questions Sources Instead of Transcribing Iran Nuke Propaganda

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Man Bites Dog

It was a development worthy of the proverbial mythical headline reversing the natural order of the world. For a very long time, I have mercilessly attacked George Jahn of the AP for the role he has played while serving to move anti-Iran propaganda into newspapers across the globe. Here’s how I described his usual role in my most recent post about him:

I have often described the process of “diplomats” close to the IAEA’s Vienna headquarters gaining access to documents and other confidential information relating to Iran’s nuclear activities and then selectively leaking the most damaging aspects of that information to George Jahn of AP. Sometimes, the information also is shared with Fredrik Dahl of Reuters, who, like Jahn, is also based in Vienna. Many believe that Israeli diplomats are most often responsible for these leaks and for shaping the stories to put Iran in the worst possible light.

Another key aspect of Jahn’s role has been his reliance on David Albright of the Institute for Science and International Security, whom Jahn has relied on regularly for adding that special “think-tank aura” to the propaganda that has been funneled to him.

Yesterday, the stage was set for Jahn to transcribe more propaganda into the record. A new IAEA report was available (pdf; I see that there is a typo on the date on the cover page, it is a 2013 report instead of the 2012 appearing there, note 2013 embedded in the document ID code) and David Albright had already taken to the fainting couch, proclaiming the evil portents of the sudden appearance of New Asphalt (!) at the Parchin site in Iran where the US and Israel claim Iran has carried out blast chamber experiments to develop a trigger for a nuclear weapon (and where the suspect building, and presumably the blast chamber itself, itself remains standing, despite a hilarious cat and mouse game Iran has played at the site). But, in true “man bites dog” fashion, Jahn chose not to play the New Asphalt game and instead published an article that puts much of the intelligence gathering of the IAEA into a perspective that calls into question the motives of those who supply the bulk of that intelligence to the UN’s nuclear watchdog agency.

Jahn wastes no time, opening the article by proclaiming that the US supplies the bulk of intelligence on Iran’s nuclear program to the IAEA and that US credibility on weapons intelligence took a huge hit in 2003 with the Iraq fiasco:

The U.N. nuclear agency responsible for probing whether Iran has worked on a nuclear bomb depends on the United States and its allies for most of its intelligence, complicating the agency’s efforts to produce findings that can be widely accepted by the international community.

Much of the world looks at U.S. intelligence on weapons development with a suspicious eye, given American claims a decade ago that Iraq had developed weapons of mass destruction. The U.S. used those claims to justify a war; Iraq, it turned out, had no such weapons.

Jahn even went so far as to get IAEA sources to provide an estimate of how the US and its allies dominate the intelligence that is provided: Read more →

Program US Heralds as Key to Afghan Stability Continues to Rely on Gang Rapes to Intimidate Locals

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On Tuesday, I wrote about the disappearances, torture and murder for which the Afghan Local Police are known, comparing them to other death squad programs that the US has backed over the years in various military engagements. Sadly, there is another class of war crimes that US-trained death squads have engaged in. Rape, especially gang rape, also is a key tool employed by these groups in their efforts to intimidate local populations. (For one example, here are details of the brutal rape and murder of a group of US nuns in El Salvador in 1980, carried out by a US-trained death squad.)

Writing in the Daily Beast yesterday, Sami Yousafzai and Ron Moreau provided excruciating details on two victims of gang rapes carried out by groups in Afghan Local Police uniforms. From one of the accounts:

Seventeen-year-old Chaman Gul suffered a similar fate to that of Monizha. Relatives describe her as being a “healthy and attractive” young woman. In a phone interview with Newsweek/The Daily Beast, she described the ordeal she suffered two months ago in Aqsaee village, Darzab district, in the northern province of Jowzjan. As she, her relatives and other villagers tell it, she was brutally raped by seven men, including the local militia’s powerful commander, Murad Bai. “They broke down the door of our home and did to me, a number of times, horrible things that I can’t tell anyone or put into plain words,” she says from an undisclosed hiding place.

Other relatives and villagers confirm her account. One 60-year-old villager, who does not wish to be named for security reasons, says he watched as Bai and his men broke into Gul’s house. He says they were wearing the khaki-colored uniforms of the ALP. “They came just after noon and collectively raped her,” the villager says. “The village was so frightened no one could raise a voice against the ALP.”

Adds a close relative, who also wishes to remain anonymous: “The girl was raped for hours and was in such a terrible condition that we thought she would die.”

The family of Monizha, the victim of another attack described earlier in the article, chose to move to a refugee camp in Pakistan. In many respects, this is one of the ways that ALP “stabilize” villages in their vaunted Village Stability Operations: they strike so much fear into the local population that they remain silent or even leave the area. But the Gul family reacted differently:

Rather than quietly hiding her suffering, as most victims and their families do, Gul took her case to the district and provincial authorities—but to no avail. “I complained to everyone in the concerned departments, but no one heard my voice,” she says.

The Darzab district police chief even threw her father out of his office. “The district police chief never offered any help or sympathy,” she says. “Another senior policeman told us the commander (Murad Bai) is the darling of the Americans and no one can touch him.”

And that is the key to how these atrocities are carried out. The heads of the militias, whether they are officially within the Afghan Local Police, or supposedly unsanctioned, but wearing ALP uniforms (and I suspect in that case, these groups are more likely to be CIA-affiliated “A-teams” like the one headed by Zakarai Kandahari in my post from Tuesday), are working with the blessings of, and under the protection of, the US. The groups know that they will not be held accountable for anything they do and this unlimited power can lead to the atrocities that we have seen.

The US can not claim ignorance of these types of atrocities. In December of 2011, Human Rights Watch begged the US not to expand the Afghan Local Police program: Read more →

We Have Always Been at War with Eastasia Adherents

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Back on September 18, 2001, here’s who we declared war against.

the 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,

On March 13, 2009, here’s how Obama expanded that AUMF to include “associated forces.”

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces 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 hostilities, in aid of such enemy armed forces. [my emphasis]

Here’s how, on Monday, the White House described the speech Obama will make tomorrow on counterterrorism.

On May 23, the President will give a speech at the National Defense University on the Administration’s counterterrorism policy. In his speech, the President will discuss our broad counter-terrorism policy, including our military, diplomatic, intelligence and legal efforts. He will review the state of the threats we face, particularly as al Qaeda core has weakened but new dangers have emerged; he will discuss the policy and legal framework under which we take action against terrorist threats, including the use of drones; he will review our detention policy and efforts to close the detention facility at Guantanamo Bay; and he will frame the future of our efforts against Al Qaeda, its affiliates and adherents. [my emphasis]

Now, in point of fact, this war against “adherents” is not new. Denis McDonough invoked it in a speech on March 6, 2011.

Preventing radicalization that leads to violence here in America is part of our larger strategy to decisively defeat al Qaeda. Overseas, because of the new focus and resources that the President has devoted to this fight, the al Qaeda leadership in the border regions of Afghanistan and Pakistan is hunkered down and it’s harder than ever for them to plot and launch attacks against our country. Because we’re helping other countries build their capacity to defend themselves, we’re making it harder for al Qaeda’s adherents to operate around the world.

Here at home, we’ve strengthened our defenses, with improvements to intelligence and aviation screening and enhanced security at our borders, ports and airports. As we’ve seen in recent attempted attacks, al Qaeda and its adherents are constantly trying to exploit any vulnerability in our open society. But it’s also clear that our dedicated intelligence, law enforcement and homeland security personnel have disrupted many more plots and saved many American lives.

[snip]

For all these reasons—our stronger defenses at home; our progress against al Qaeda overseas; the rejection of al Qaeda by so many Muslims around the world; and the powerful image of Muslims thriving in America—al Qaeda and its adherents have increasingly turned to another troubling tactic: attempting to recruit and radicalize people to terrorism here in the United States.

[snip]

But with al Qaeda and its adherents constantly evolving and refining their tactics, our understanding of the threat has to evolve as well.

Obama invoked adherents, sort of, shortly thereafter.

Bin Laden and his murderous vision won some adherents.

And John Brennan invoked adherents in speeches on June 29, 2011, September 16, 2011, April 30, 2012, and October 26, 2012.

So the Administration has been at war against al Qaeda adherents (and affiliates, another new category) for some time.

But if I’m not mistaken, tomorrow will mark the most detailed discussion in which the President describes this war that no one declared against adherents. And given that Congress has shown newfound interest in the scope of the AUMF that includes neither adherents nor associated forces, it will be interesting to see how the President describes this expanded war.

Body of Zakaria Kandahari’s Videotaped Torture Victim Surfaces, 200 Yards from US Nerkh Base

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When last we left the saga of the US role relating to the “rogue” Afghan death squad in the Nerkh District of Maidan Wardak province of Afghanistan, the New York Times was studiously transcribing denials from various US government officials of any US involvement  in the torture, disappearances and murders that are both the touchstone of US-trained death squad operations dating back at least to Central America in the 1980’s (if not all the way back to Vietnam) and the atrocities that prompted Hamid Karzai to announce that he was expelling US Special Forces from the province. Although Karzai eventually relented somewhat and agreed to only expel US Special Forces from the Nerkh District instead of the entire province, as I pointed out in my post on the Times’ transcription of US denials, evidence continues to accumulate that CIA paramilitary operations personnel almost certainly seem to have been involved in the training and deployment of the “rogue” Afghan Local Police unit based in Nerkh. With today’s new development, it seems very likely that these CIA paramilitary personnel (and their Afghan trainees) are still operating, with impunity, at the Nerkh base.

What we learn today is stunning and looks like a calculated move intended to strike fear into the local population around the Nerkh base (which is, of course, the aim of US-trained death squads organized under the COIN rubric). From the New York Times:

Family members on Tuesday found the body of a man missing since last November near the American Special Forces base to which he was last seen being taken, according to Afghan officials and victims’ representatives.

Afghan investigators said that after his disappearance, the man, Sayid Mohammad, was seen in a video undergoing torture at the hands of an Afghan-American named Zakaria Kandahari, who was the chief translator for an American Army Special Forces A Team stationed at the base in the Nerkh district of Wardak Province.

Mr. Mohammad’s body was found about 200 yards outside the perimeter of the Nerkh base, which is now occupied by Afghan special forces after the American unit was removed following protests by Afghan officials, including President Hamid Karzai.

Relatives of Mr. Mohammad said his body was largely intact but both of his feet had been cut off. They took his remains to the Nerkh district government center in protest. The partial remains of another missing person were also found near the base, family members and Afghan officials have said.

The article is silent on the question of how long the victim appeared to have been dead. Note that the Times reminds us that the Nerkh base no longer has US Special Operations Forces. I find it very hard to believe that a group of Afghan Local Police and Afghan Special Forces, after having drawn so much local anger and international attention to themselves through prompting Karzai’s outburst and expulsion of US Special Forces, would carry out such a brazen and brutal move on their own. However, if CIA paramilitary operatives are still present at the base and still directing (and protecting) the Afghan team, the move seems less surprising.

We also learn in today’s article that at least 17 people are now known to have been disappeared by this death squad. Nine of those victims have been found dead and eight are still missing. Afghan investigators are considerably less credulous of US denials of involvement than the Times is:

“There is no question that Zakaria directly tortured and murdered,” the investigator said. “But who is Zakaria? Who recruited him, gave him his salary, his weapons? Who kept him under their protection? He worked for Special Forces. That a member of their team was committing such crimes and they didn’t know it is just not credible.”

The description of the videotape of the torture session conducted by Kandahari (which still has not been released) has changed in one respect. Today’s article informs us that the Afghan investigator who was interviewed now says there were no voices with American accents on the tape.

Not that it really needs pointing out, but involvement of CIA paramilitary personnel at the Nerkh base would by definition be a covert mission covered by false, but official US government denials.

Oh, and there’s one last question I would have added to the Afghan investigator’s list above: Who helped Zakaria Kandahari to escape without a trace?

The answers to those questions would go a long way toward confirming or denying my speculation on CIA paramilitary personnel (including contractors) being central to these awful events.

State Department, US Press Hide Important Karzai Statement on Bilateral Security Agreement

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Karzai addressing his cabinet. Photo is from the web posting of Karzai's statement on the Bilateral Security Agreement.

Karzai addressing his cabinet. Photo is from the web posting of Karzai’s statement on the Bilateral Security Agreement.

Although there really is only one controlling issue in the quest to sign a new SOFA (Status of Forces Agreement) BSA (Bilateral Security Agreement) governing US troops in Afghanistan after official NATO actions conclude at the end of next year, Afghan President Hamid Karzai seems to be taking perverse pleasure in taking sweeping actions and making broad statements that seem to alternately encourage and then discourage those seeking to finalize the agreement. As I explained late last year, the US will keep troops in Afghanistan after 2014 only if they are granted criminal immunity. Without immunity, the US will withdraw fully just as it did in Iraq when immunity was denied there.

Recall that Karzai called for all US Special Forces to leave Maidan Wardak province back in late February. Just about three weeks later, he appeared to relent somewhat and it appears that SOF only left one district. On May 9, Karzai surprised everyone by announcing that the US could maintain nine bases in Afghanistan after 2014, apparently catching the US off-guard. In response, the US claimed they want to house troops at Afghan bases, because there is no desire for permanent US bases in Afghanistan.

Lest those negotiating the agreement get too encouraged by the base proposal, though, Karzai has now placed what appears to be a completely impossible precondition on signing the agreement, but citizens in the US would be hard-pressed to know anything about it. At the State Department briefing on May 17, there was an acknowledgement that Karzai had released a statement, but we don’t learn what Karzai actually said from the exchange with a reporter:

Walitz, do you have something?

QUESTION: Afghanistan.

MS. PSAKI: Mm-hmm.

QUESTION: President Karzai’s office issued a brief statement today that he spoke to Secretary Kerry. Do you have any details on the readout, what were the issues they discussed?

MS. PSAKI: I do, I do.

QUESTION: Thank you.

MS. PSAKI: So Secretary Kerry spoke this morning with President Karzai. They discussed our joint progress on the bilateral security agreement, border issues, and the status of the ongoing peace process. Secretary Kerry also affirmed that he and President Karzai remain committed to the same strategy and the same goal of a stable, sovereign Afghanistan, responsible for its own security and able to ensure that it can never again be a safe haven for terrorists.

QUESTION: Do you know when this BSA will be signed? What’s the status on that?

MS. PSAKI: I don’t have any specific update on that. Again, it’s obviously something that we continue to work on, work very closely on at many levels with the Government of Afghanistan.

So neither Jen Psaki, the State Department spokesperson, nor the reporter referred to as Walitz bothers to actually mention what Karzai said in his statement that was released. Here is what Karzai’s statement says regarding the bilateral security agreement:

On the bilateral security agreement that the United States is seeking to sign with Afghanistan at the soonest, President Karzai has said to the US Secretary of State that Afghanistan would sign the agreement only if conditions of the Afghan people were accepted and the first precondition is to bring peace and to end war in Afghanistan.

President Karzai clarified to John Kerry, it was impossible for the people of Afghanistan to be pleased with signing of the security agreement whereas violence and war continue in the country.

The President said to the Cabinet meeting that the security agreement if signed without the return of peace, and with continuation of violence and bombings means that the people of Afghanistan would continue to suffer every day from blasts, terrorist attacks and foreign invasions.

President Karzai added, the fundamental precondition of Afghans for the agreement is bringing peace, security and stability to Afghanistan if this is fulfilled, then the Afghan people would agree with signing of the agreement with the United States.

Just wow. Karzai has said he will not sign the agreement while “violence and war” continue in Afghanistan, and neither the “press” nor the Department of State “spokesperson” found it necessary to put that particular tidbit into the public record. I can find no reports on Karzai’s statement in the US press. It has been reported by ToloNews in Afghanistan. It would appear that when the State Department gives its own “readout” on a conversation, it is very important to check other original sources for what really took place in the conversation.

[Brief note on dates: the reporter mentions that Karzai’s office released a brief statement “today” that Karzai had spoken to Kerry. From the records I can find, this press briefing took place at 12:30 pm in Washington on May 17, which would be 9 pm in Kabul on the same day. The statement from Karzai’s office that I quote here is dated May 18, so it is unclear whether Walitz had seen the full Karzai statement at the time the question was posed. I can find no reference to the Karzai-Kerry conversation on the Karzai website that is dated May 17.]

Group Behind Deadly Kabul Blast Upset by Negotiations on US Troops Remaining in Afghanistan

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There was a deadly blast in Kabul yesterday, shattering what had been several months of relative peace in the capitol. The suicide blast targeted a convoy of US vehicles. From the New York Times:

Hezb-i-Islami, a relatively small insurgent faction that often competes with the Taliban for influence, claimed responsibility for the attack, which also wounded more than three dozen Afghans. Haroon Zarghon, the group’s spokesman, reached by telephone in Pakistan, said the bombing was carried out by a 24-year-old man who had grown up south of Kabul.

More attacks against Americans will come soon, Mr. Zarghon added, saying that Hezb-i-Islami was dismayed by the current talks between Afghanistan and the United States about a long-term security deal under which thousands of American soldiers could be based in Afghanistan for years to come.

Hezb-i-Islami has a complex history and has been around Afghanistan for a long time. Even Kimberly Kagan’s Instutite for the Study of War admits that the CIA funneled significant support to this group in fighting the Soviets:

Hizb-i-Islami Gulbuddin (HIG), led by Gulbuddin Hekmatyar, is an insurgent group active in Afghanistan. It is a splinter group of one of the prominent , and the most radical of the seven mujahedeen factions fighting the Soviets in the 1980s. Hekmatyar , a favorite of the CIA and Pakistan’s Inter-Services Intelligence (ISI) Directorate, received the greatest portion of foreign assistance to the mujahedeen.  Hekmatyar trained Afghan and foreign guerilla fighters in the refugee camps of Shamshatoo and Jalozai in Pakistan’s Northwest Frontier Province (NWFP) and also ran numerous schools and hospitals in NWFP. His organization  also received funds from Saudi charity organizations, Muslim Brotherhood, al-Qaeda leader, Osama Bin Laden, and other wealthy Arabs.

The political side of the group, however, is active in the current government and is contemplating fielding a candidate for the upcoming Presidential elections:

The party’s deputy chief Ghairat Bahir said that a delegation of four senior party figures are in Kabul meeting local members to discuss the election and possible presidential candidates.

“We have sent a delegation to Kabul. The delegation is led by Mohammad Rassoul. Its purpose is to visit and discuses [sic] with Hezb-e-Islami members in Kabul, not to talk with [Afghan] government officials,” he told TOLOnews via telephone from Pakistan.

“The delegation has talked with the party members about the election and the party decided to introduce a candidate or support a competent candidate. We will soon make a final decision on this. I cannot name the candidate but our party’s nomination will be a prominent person in the country,” Bahir said.

The presence of US troops in Afghanistan is the primary concern for the group: Read more →

What Is the Attrition Rate for Afghan Special Operations Forces?

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Yesterday, Major General Tony Thomas, who heads US Special Operations Forces in Afghanistan, fielded questions via satellite from a number of reporters gathered in Washington. The transcript of the session can be found here. One claim by Thomas that stood out to me as  I listened was an assertion that Afghan Special Operations Forces do not suffer the same high level of attrition that is seen generally for ANSF. Here is the exchange, where Thomas’ response to the first half of the question has been edited out and emphasis has been added:

 Q: General, it’s Luis Martinez with ABC News. Can I ask you about what your command’s role is going to be after 2014? What — will there be a shift in emphasis? What exactly will your operators be doing?

And also, the Afghan national army as a whole seems to suffer from attrition and retention problems. How does that manifest itself in the commando kandaks, if at all?

MAJ. GEN. THOMAS:

/snip/

We are not suffering similar attrition or, as we prefer to look at it, retention challenges with the commandos and with other formations. But again, here again, we’re lucky. We’ve been working with them for a while. They are on a cycle which has a built-in break, so it’s a great, amber, red cycle, where green, combat is on the schedule, they are going into operation and they know that they’ll have, you know, a — they’ll be applied in the hardest possible scenarios. But on the other cycles, they’ll have a chance to recoup, take leave. They’ll also have a chance to train as they come back into green cycle.

And I know that others are attempting to apply that same cycle to the rest of the force. That’s been the great challenge for the rest of the Afghan security forces, is they’re almost in a relentless combat cycle, and it’s breeding some of the retention challenges. But we are — we are looking to fix that over time, and, again, the special operations example is applicable to the rest of the force. We just need to bring that into line.

I noted at the time Thomas said this that it should be fairly easy to fact-check Thomas on his claim that Afghan Special Forces do not suffer the same high attrition rate as the rest of ANSF. One reason for my thinking this is that Afghan Special Forces are not nearly as highly trained as US Special Forces. There is only a twelve week extra training period for Afghan troops to be classified as special. I have a hard time seeing how such a short period of additional training will add significantly to retention rate.

If we look fist to Defense Department claims only, the most recent Report on Progress Toward Security and Stability in Afghanistan (pdf), dated December 2012, has this paragraph (emphasis added):

ANASOC continues to develop its institutional capacity to conduct training programs. Currently, a majority of courses taught at the Division School of Excellence are Afghan-led, with minimal Coalition Force oversight. The ANASOC has produced 11,710 Commandos and 955 ANASF. Graduation rates for both CDO and SF operators remained steady and are on schedule to meet end-strength targets. From April through September 2012, the School of Excellence produced a total of 621 new CDO, and 282 new SF operators. Based on current recruiting and graduation trends, ANASF are anticipated to achieve their end-strength force level of 1,863 personnel by the 4th quarter of 2013. ANA Commandos (ANACDO) are currently at their endstrength force level of 12,525. Staff training at all levels is occurring through uniformed and civilian mentorship programs; the target of ANASOC reaching FOC for all units is 2014, with the exception of the SMW.

There are several different categories of ANSF troops described in the paragraph, but from the context of Thomas’ remarks and the reports analyzed here, the category of commando is what is relevant. Note that this Defense Department report claims 621 new commandos trained in an approximately five month period and that the commandos are at the endstrength force level of 12,525.

However, if we check these numbers against the more independent information from the Special Inspector General for Afghanistan Reconstruction, we find both Thomas’ claim of low attrition for commandos and the current force level for commandos in the Defense Department report to be misleading. Read more →

Declaring “Wars” the President Didn’t Ask For

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I’ll probably have a few posts on Harold Koh’s speech opposing what he calls the “Forever War” at the Oxford Union. For now, I want to look at his argument against a new Authorization to Use Military Force.

I strongly disagree with those who claim that new legislation is now necessary to authorize the Administration to fight against new enemies. The burden of proving that such legislation would be either necessary or wise should fall on the proponents. As a lifelong international and constitutional lawyer who has worked on these legal issues for a decade, I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat. Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration. Nor would adopting new domestic legislation make actions in preemptive self-defense lawful under international law. And unless we can clearly define just who the new enemies are–and why existing legal authorities are insufficient to defend ourselves against them–we have no basis for passing new laws that would perpetuate the Forever War against shadowy foes whose association with those who have attacked us on 9/11 cannot be proven.

It’s hard to tell where the boundaries between good faith and deception lie here. After all, in several places in the speech — including this passage purportedly distinguishing what Obama has done from what Bush did — Koh’s language admits the possibility that Congressional sanction for military force is not the only authority Obama is working with (though he does admit that Congressional authority is one source of authority).

First, the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s s vague constitutional powers.

And so when he says things like “I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat,” it seems likely he’s preserving the ability to rely on Article II authority for something called an “imminent threat.” The same is true when he invokes “existing legal authorities” when he talks about fighting people who are clearly not Al Qaeda.

In other words, even while he seems to be opposed to treating our newer enemies as war opponents, he also seems to be reserving the right to rely on Article II authority to go after them. Which is not necessarily a better proposition for those who truly value other tools rather than killing.

That’s why I’m struck by this sentence.

Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration.

What Koh seems to be worried about is shifting the balance of the Youngstown test — whether Presidential power is expansive or limited — of the AUMF itself (Koh pretends authorizing military force is the same thing as declaring war, but in any case, last I checked, the authority to declare war belonged to Article I).

That’s true, first of all, because the way the existing AUMF was written — which allows the President to determine the enemy and has been interpreted consistently but wrongly as authorizing war powers here in the US. A new AUMF might (though probably wouldn’t) explicitly clarify the limits to war powers in the US or at least with US citizens.

But as even the 2012 NDAA showed, it can work the other way, with Congress requiring that Obama default to military detention and commissions with any new terrorist suspects. Mind you, Obama took the limits on what he could do in Gitmo far, far more seriously than he did the requirement that DOD give every one of its detainees a meaningful review, so he’s already picking and choosing what legislative requirements he fulfills. But in theory at least, Congress can mandate the President treat certain targets as enemies of war, rather than criminals.

But that, it seems to me, is ultimately what this debate about a new AUMF comes down to. Koh and, presumably, others who have served the President won’t want Congress to change the delicate balance that offers the President a great deal of flexibility to operate under both the AUMF and Article II. And to some degree, they’re right to worry about what batshit stuff the Lindsey Grahams of the world will mandate. But I suspect they’re just as worried that a new AUMF will put real limits to the President’s current fairly unlimited authority.

Look, I don’t trust Congress to write a new AUMF either. If they do one, it’s going to contain all manner of batshittery.

But bizarrely, in our crazy world, passing a new one might actually be a more effective way to limit what the President can and can’t do as anything else that has been tried. If we want to force the Executive Branch to stop waging war against Americans in America, we’re going to have to do so explicitly.

Dunford Once Again Shows Complete Lack of Budget Awareness

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When we last heard from General Joseph (We Are Winning in Afghanistan, We Really Are!) Dunford, he was showing total incompetence in terms of budget awareness in front of the Senate Armed Services Committee. Defense Secretary Chuck Hagel had announced on March 28 that DoD was $7 billion over budget in Afghanistan. By the time Dunford was asked about the over-budget situation during the hearing on April 16, Mike Lee stated that the overage had grown to $10 billion. Despite being in charge of US and NATO troops in Afghanistan, Dunford professed complete ignorance of the over-budget situation. That is a stunning lack of situational awareness for someone who is supposed to be in charge. After bumbling on a bit, Dunford did promise to eventually get back to Lee on the budget issue.

It would appear that even if he has gone back and looked over his own money management failures, Dunford has looked no further than the DoD budget. The New York Times posted a story yesterday based on an interview with him, and Dunford made another statement that is mind-boggling in terms of its lack of awareness of budget realities for the region. Recall that back in February, NATO defense ministers proposed that instead of allowing Afghan National Security Forces to drop by about a third after the end of 2014, the full force size of “352,000” (that’s in quotes because I think the SIGAR audit is going to finally destroy the 352,000 force size myth) should be maintained through at least 2018. My response to this suggestion was that it appeared to be a $22 billion bribe being offered to Afghan authorities in return for their agreeing to a Status of Forces Agreement that would grant criminal immunity to US forces remaining after the end of the official NATO mission at the end of 2014.

In the interview with the Times, Dunford continued his previous agreement with the concept of extending the time frame for the larger ANSF force size, but then made a suggestion that is stunningly stupid regarding how the extended force size should be funded:

He has concluded as well that plans to reduce the number of Afghan security forces — the army and police combined — to 228,000 after 2015 from the current target level of 352,000 are not realistic, given the threats in the country. “The consensus now both from the Afghans and certainly from us is that we ought to sustain that for some period time to come,” said General Dunford, referring to the 352,000 head count.

What is less clear is how such a force could be paid for. The international community, led by the United States, has agreed to pay roughly $4.1 billion in aid per year for the Afghan security forces after 2014, based on estimates of what a smaller Afghan security contingent would cost. If the Afghans want to keep a larger force, they will either have to field a cheaper army and police force or come up with more money themselves to pay for it. General Dunford suggested that the Afghans could economize, although he did not give examples of where they might find the savings.

That’s right. A totally dysfunctional, stunningly corrupt government should just somehow “economize” and find an additional $22 billion to fund a mythically large defense force.

Oh, and just like his own war effort in Afghanistan that has been mis-managed into a huge budget deficit, if Dunford only read the New York Times, he would be aware that the IMF has found Afghanistan’s government to be facing a serious budget shortfall:

The Afghan government is supposed to cover less than half its own bills this year, yet achieving even that modest goal is proving an unexpected challenge, Afghan and Western officials said.

A confidential assessment of Afghan finances by the International Monetary Fund said the potentially severe cash crunch was caused by widespread tax evasion abetted by government officials, the increasing theft of customs revenues by provincial governors and softening economic growth.

The I.M.F. assessment, which has not been publicly released but was described by American and European diplomats who were recently briefed on its findings, estimated that Afghan revenue in the first quarter of the year was roughly 20 percent to 30 percent short of an informal target the fund had set for the government.

Yeah, sure. With revenues already 20 to 30 percent short of projections, that’s a government that can just poke around a bit and find another $22 billion in the SOFA.