(A possibility that seems to be on the table.) Recall our friend, the AUMF:
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, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Al Qaeda is the relevant organization here, and so U.S. presidents can (indefinitely?) take military action against Al Qaeda, regardless of the country in which Al Qaeda members are located. Note that a military strike against Al Qaeda in Yemen would be an act of war against Yemen unless Yemen consented to it (and it might), even though the government of Yemen itself does not support Al Qaeda (as far as anyone can tell) and indeed has been cooperating with the United States in the “war” (or “law enforcement action” or whatever it is) against Al Qaeda. But Yemen, because of its own internal conflicts and the weakness of its government, may not be willing to take as aggressive action as the U.S. government wants it to—just like in Pakistan, where a similar war between the United States and Al Qaeda is taking place with only the quasi-consent of the Pakistani government.
But there is a further complication. The relevant Al Qaeda in Yemen is called “Al Qaeda in the Arabian Peninsula.” Is Al Qaeda in the Arabian Peninsula a branch of Al Qaeda, the organization that planned and executed the 9/11 attack and is therefore covered by the AUMF? There are apparently contacts between the two Al Qaedas, but does that make them the same organization, or just two separate organizations that have—contacts? What if the two Al Qaedas do not cooperate in any way; suppose that leaders of Al Qaeda in the Arabian Peninsula simply borrowed the name Al Qaeda, a kind of trademark violation intended to siphon off some of the reputational capital enjoyed by the original? If so, the authority bestowed by the AUMF vanishes—poof!
All of this is moot if the U.S. government takes the precaution of blowing up its targets in Yemen rather than taking them prisoner. As others on this blog have noted, the courts in their wisdom apply different standards in the two cases. If Al Qaeda in the Arabian Peninsula is not a part of Al Qaeda, the president can draw on his constitutional authority for a military attack, as Reagan, Clinton, and other presidents have. But if the U.S. military takes anyone prisoner, and the AUMF does not apply, then the outcome is anyone’s guess. One suspects that for this reason any prisoners will be quietly turned over to the Yemenis, who would be happy to interrogate, intern, or dispatch a common enemy.
DJR says:
Who would have standing to challenge Obama’s hypothetical order of military strikes on Yemen?
December 30, 2009, 1:15 pmUgh says:
Gosh, this post would have been nice to have when the Bush administration was doing the same thing. Hmm…
December 30, 2009, 1:20 pmmikeyes says:
Best I can tell, Yemen is another “country” that is divided into clan areas that are more or less independent from the central government and there is very little that anyone can do about ut short of being a Mongol horde.
As a result, AQ can and does operate the way they do in Sudan and other countries that are failed states by paying off or intimidating the clan leaders. Yemeni armed forces, when they are not deserting to their clans with all of their equipment, are trying to deal with AQ, but it is not very effective.
On the other hand it appears that the US is already very active in Yemen doing what they have to do. (Blowing things up.) So what you are asking may be a moot point.
December 30, 2009, 1:21 pmSammy Finkelman says:
I don’t know if it would occur to anybody ese to raise a question about this, but I guess you could argue, even though this ios very clearly linked, if any of the authority under U.S. law for taking in action in yemen, derive from the 2001 resolution.
Of course at that time they didn’t really anticipa
December 30, 2009, 1:21 pmdoes in fact
Sammy Finkelman says:
I don’t know if it would occur to anybody ese to raise a question about this, but I guess you could argue, even though this ios very clearly linked, if any of the authority under U.S. law for taking in action in yemen, derive from the 2001 resolution.
Of course at that time they didn’t really anticipa
December 30, 2009, 1:21 pmdoes in fact
RPT says:
This incident has certainly highlighted the absurd positions of some: complain after blocking the appointment of the TSA director and voting against funds for screening; revisiting the issue of the propriety of prosecuting a shoe bomber but not an underwear bomber in the criminal justice system, and so on. I am surprised it took Cheney six days to come out with his “expert” opinion.
December 30, 2009, 1:46 pmDave N. says:
When did the United States attack Yemen during the Bush Administration? I must have missed the news that day.
December 30, 2009, 1:48 pmgracchus says:
Handing captives over to the Yemenis is a non-starter. They set the USS Cole bombers free, and they have been notoriously uncooperative for years. The “new” terrorist activity in Yemen is hardly new.
Shifting gears a bit, wasn’t the presence of US armed forces on the Arabian Peninsula a major grievance of Al Qaeda et al.? It seems that actual attacks by the US on a part of the peninsula would be an even greater irritant, and a really bad idea.
December 30, 2009, 1:53 pmSammy Finkelman says:
They didn’t really anticipate it would go on so long, so the past tense, about those who had “planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” would seem to cover preventing “future acts of international terrorism”
Now of course they are linked but maybe this branch of Al Qaeda wasn’t established then.
Of course in reality anyway there is a link to Pakistan – the “Indian” who helped Umar Farouk Abdul Mutallab board the plane in Amsterdam was probably a Pakistani – and if Kurt Haskell is lying, would he really think to call the person who aided him an Indian? Would he think up that touch of Abdul Mutallab not speaking (to hide his fluency in english and his accent) and the other person being extremely well dressed? And note their being held aboard after the incident – which many people would not expect but is the new SOP in the last decade or so whenever police are in danger? (Remember Columbine?) And does his wife Lori back up his story? (Now other possibilities would be somebody impersonating them, either in person on online or taht this was a totally different passenger)
http://www.mlive.com/news/detroit/index.ssf/2009/12/commenter_says_he_was_aboard_n.html
http://www.mlive.com/news/detroit/index.ssf/2009/12/flight_253_passenger_says_at_l.html
http://www.mlive.com/news/detroit/index.ssf/2009/12/kurt_haskell_shares_claim_of_f.html
http://www.youtube.com/watch?v=OFwSH-9Dqgk&feature=player_embedded
http://www.youtube.com/watch?v=mAtK7FFDukQ&feature=player_embedded
http://www.freerepublic.com/focus/f-bloggers/2415422/posts
There has apparently been neither a protest or denial by the real Kurt Haskell or a retraction by any of the news media that carried it, nor a confirmation and follow-up. It could be somebody asked him to keep quiet for the sake of the investigation.
An interesting question would be: If this happened, did Abdulmutallab use his right name? If not when did the authorities learn of his name? Or was he just simply trying to avoid having his passport looked at by the screeners, which would show a trip from Yemen to Nigeria to Amsterdam all in a few days (with the ticket to the United States being bought in Ghana for cash by an unkmnown person. That is, was a different story told to the screeners than to the airline?? Or maybe even several stories told to different people?
December 30, 2009, 1:55 pmJust Dropping By says:
From the November 24, 2002 Chicago Tribune:
The Nov. 3 [2002] attack in Yemen, involving a missile fired from a remote-controlled CIA Predator drone, killed suspected Al Qaeda leader Ali Qaed Sinan al-Harthi and five other alleged terrorist operatives, including an American citizen, Ahmed Hijazi.
The strike was justified under international rules of war, the administration contends, because al-Harthi was a suspect in the October 2000 bombing of the USS Cole in Yemen and therefore qualified as an “enemy combatant.”
Yemen’s sovereignty was not violated, officials say, because the government there gave permission for the attack. Previous attempts by Yemeni authorities to arrest Al Qaeda suspects on their territory led to bloody firefights in which several police officers and soldiers were killed.
The administration also maintains that the Predator attack, because it occurred in the context of a war against terrorism, did not violate a 1976 executive order banning assassinations, signed by President Gerald Ford and still in force. That order says that “no person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”
“I can assure you that no constitutional questions are raised here,” [National Security Adviser Condoleezza] Rice said. The president, she continued, is “well within the bounds of accepted practice and the letter of his constitutional authority.”
December 30, 2009, 1:59 pmlgm says:
Actually, last week the US and Yemen cooperated in military actions against AQ in Yemen. They are thinking about doing it again.
And I agree with Ugh — did you question use of US forces under Bush?
December 30, 2009, 1:59 pmUgh says:
Of course you did:
A CIA missile strike by a pilotless aircraft killed Ahmed Hijazi, a U.S. citizen, in Yemen in 2002, in an attack aimed at suspected al-Qaeda members.
December 30, 2009, 2:01 pmSteven Den Beste says:
Under the War Powers Act, the president doesn’t need Congressional authorization for any military operation which lasts less than 60 days.
December 30, 2009, 2:03 pmSteve says:
The idea that the courts would ever get into the business of parsing the relationships between various al-Qaeda organizations and determine “that organization you attacked wasn’t connected to 9/11, you have to let the prisoners go” is ludicrous. Setting aside the courts’ traditional disinclination to come anywhere near that type of issue, the AUMF by its terms gives the President wide authority to identify the “organizations” involved with 9/11. The federal courts are not populated by the heirs of William O. Douglas.
Having said that, the President’s power is at its maximum when he acts with Congressional authorization. Depending on the scope of the proposed response, and the need for surprise/secrecy, Obama certainly ought to keep Congress informed and seek explicit authorization to the greatest extent practicable. I’m tired of this philosophy of claiming as much executive power as possible, merely for the sake of setting a precedent.
December 30, 2009, 2:05 pmDave N. says:
I will acknowledge I forgot about the attack several others mentioned. Snark does occassionally get ahead of facts. If Yemen consents to an attack in 2010, there is no need to parse whether it was authorized or not — just like the 2003 attack.
December 30, 2009, 2:09 pmKazinski says:
Note also that Yemen is committing an act of war against the US by harboring a group conducting terrorist attacks against the US.
December 30, 2009, 2:25 pmSteve says:
Note also that Yemen is committing an act of war against the US by harboring a group conducting terrorist attacks against the US.
Given the government of Yemen’s significant degree of cooperation with the US, in what sense are they “harboring” terrorists?
December 30, 2009, 2:30 pmBob from Ohio says:
The idea that the courts would ever get into the business of parsing the relationships between various al-Qaeda organizations and determine “that organization you attacked wasn’t connected to 9/11, you have to let the prisoners go” is ludicrous.
December 30, 2009, 2:43 pmKazinski says:
As long as they continue to cooperate then we are not committing an act of war against Yemen by going after terrorists there. If they stop cooperating before Al Qaida is dismantled or stops conducting terror and training ops there, then Yemen will be committing and act of war against us. And we will have all the justification we need to go in there to protect ourselves.
December 30, 2009, 2:51 pmmojo says:
“Neca eos omnes. Deus suos agnoset” said the Papal Legate.
December 30, 2009, 3:03 pmDoc Merlin says:
Its a bad question.
The president can and will do whatever he pleases unless congress reins him in or the judiciary does and congress tacitly approves. There is plenty of precedent for that. Also congress has already given permission for any and all attacks anywhere in the world (outside the us) up to a limited time in the War Powers Act.
December 30, 2009, 3:04 pmChris says:
Tricky Ship-of-Theseus-style issues for what counts as “Al Qaeda.”
December 30, 2009, 3:35 pmAnon Y. Mous says:
Yes, it would be a real shame if we were to do anything that irritates Al Qaeda in any way.
December 30, 2009, 3:37 pmLTEC says:
You ask:
I’m very confused about the meaning today of Al Qaeda. If it is other than a state of mind, then it must have a known principal location, and/or a known leader, and/or a commonly agreed upon way of communicating with the world, and/or … something that gives it an actual identity. To put it another way, what evidence would you need to conclude that I have “been in contact with Al Qaeda”, or that Al Qaeda has funded a particular operation, or that Al Qaeda has issued such-and-such a statement?
Is there some private digital signature key, and Al Qaeda is defined as anyone who possesses that key? Or is Al Qaeda defined as whatever Bin Laden authorizes; this would be well-defined, even if in practice we could never determine if any particular thing were so authorized, but Al Qaeda would cease to exist (retroactively) if we discover when he died.
December 30, 2009, 3:52 pmKazinski says:
I’ve got no problem killing all the posers too.
December 30, 2009, 4:00 pmNot My Leg says:
I don’t think this is correct. You seem to be saying that if Yemen refused to consent to US military action against Al Qaida within Yemen, that would be an act of war against the United States. I’m not sure that a country refusing to allow its sovereign territory to be violated by another is an act of war, no matter the justification of the country seeking to violate the territory of the other.
The situation would be different if the country was actively supporting an organization committing acts of war. In that case, however, the act of war would not be refusing to allow entry, but committing acts of war by proxy. If Yemen simply said, we are no longer going to allow the US to conduct operations against Al Qaida, that would not be an act of war against the US. (Although the US may be right to simply ignore the situation and conduct the attacks without support, knowing that Yemen would be justified in responding by declaring war.)
December 30, 2009, 4:02 pmMartinned says:
AFAIK, the literature tends to distinguish between Al-Qaeda “central”, which is a real organisation properly so called, and Al-Qaeda as a brand. The former, which includes the group around Bin Laden and Al Zawahiri, as well as the group around KSM, was never very large to begin with and virtually all its members are either dead, detained, or constantly on the run. Beyond that, though, Al Qaeda has become a kind of umbrella organisation, which one can join by blowing something up, without necessarily having ever met anyone from the original club. In terrorism, as in advertising, branding is everything. (Organisations like Al Qaeda Magreb and Al Qaeda on the Arabian Peninsula are, IIRC, somewhere inbetween. These are pre-existing organisations which adopted the brand name Al Qaeda after “consultations” with Al Zawahiri.)
If the president is considering going beyond the powers granted in the War Powers Act, the question of which Al Qaeda the AUMF refers to is a valid one. Presumably, members of the armed forces actually or possibly sent to fight in Yemen would have standing to sue over this, as would Congress. The courts are quite capable of sorting this out, albeit with a degree of deferrence to the president. They already did so in the “Uighur in GITMO”-litigation, for instance.
(Here in the Netherlands, a related problem is what “organisation” means in the criminal offence of being a member of a terrorist organisation. Is the Hofstadgroep an organisation within the meaning of the law? Or is it merely a ” network”? The court of first instance and the court of appeals disagreed, and now this question is before the supreme court.)
December 30, 2009, 4:06 pmSteve says:
If the president is considering going beyond the powers granted in the War Powers Act, the question of which Al Qaeda the AUMF refers to is a valid one.
But don’t you think the AUMF explicitly gives the President, and not the courts, the authority to answer that question?
December 30, 2009, 4:47 pmCrunchy Frog says:
Well then, if the bad guys are stupid enough to brand themselves in such a way that gets a predator strike coming in the front door, then they deserve what comes to them.
The mere act of calling themselves “Al Qaeda” is by its very nature a declaration of war against the US. Why shouldn’t we reciprocate?
December 30, 2009, 5:04 pmwm13 says:
Al Qaeda has become sort of like the Mile High Club.
December 30, 2009, 5:09 pmMark N. says:
I don’t think anyone’s arguing we shouldn’t attack them, but the question is whether the AUMF explicitly authorizes such an attack in this case, or if the President would be acting under inherent war-making powers without explicit Congressional authorization. (Or, alternately, should seek new authorization.)
December 30, 2009, 5:19 pmKazinski says:
They either need to do the job themselves, and do it effectively, or stand aside and let us do it ourselves.
What you are basically saying is that when the Nazi’s violated Dutch and Belgium neutrality in WWII to attack France, then the French would not be able to order airstrikes to attack the German troops while they were in Dutch territory and would have to wait until they emerged on French soil. That of course is wrong. If the Dutch were able to effectively stop the Germans from attacking France from Dutch territory then France would have to defer to the Dutch, because the Dutch would be demonstrating that they could effectively control their own territory.
The United Nations Charter Article 51:
December 30, 2009, 5:30 pm<blockquote>Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
first history says:
As the AUMF doesn’t specify Al Qaeda in any of its language, and gives the President authority
December 30, 2009, 5:35 pmto “prevent any future acts of international terrorism against the United States by such nations, organizations or persons,” President Obama is well within his authority to conduct any necessary operations in Yemen, for however long it takes (since the War Powers Resolution one can argue is unconstitutional).
Steve says:
What you are basically saying is that when the Nazi’s violated Dutch and Belgium neutrality in WWII to attack France, then the French would not be able to order airstrikes to attack the German troops while they were in Dutch territory and would have to wait until they emerged on French soil.
No, I think he’s saying that when the Nazis attacked France from Holland and Belgium, it wasn’t an act of war by Holland and Belgium!
December 30, 2009, 5:37 pmArthurKirkland says:
By that “reasoning,” Cuba would be entitled to send agents into the United States to remedy Americans’ failure to deal with anti-Cuba terrorists.
Several other countries — Italy, for example — would have similarly legitimate grounds for conducting operations in the United States.
That doesn’t strike me as “reasoning.”
If anyone in the United States government wishes to exercise wartime powers, a declaration of war should be required. And it shouldn’t be a vague recitation of indefinite classes of enemies and provocations. The fig leaf used as a foundation for attacking Iraq was an embarrassment; little wonder the resulting invasion turned out to be a mistake.
December 30, 2009, 5:53 pmMartinned says:
If it did, I’d say it was unconstitutional. The Constitution assigns to Congress the power to declare war, and I don’t think they can lawfully pass on that power to the President. So if the AUMF is a blanket authorisation to attack any state or organisation who is a threat to the US, it would be unconstitutional.
December 30, 2009, 6:12 pmMartinned says:
Sidestepping, for now, the issue of whether it is possible to wage war against a non-state actor, the question remains: Who decides? Does the president? Or should Congress?
December 30, 2009, 6:13 pmShelbyC says:
And that gets to the heart of the problem with the original AUMF to the extent that it’s viewed as an effective declaration of war.
December 30, 2009, 6:15 pmMartinned says:
I think you’re misreading the resolution. It does not authorise action against people who had no connection, however tenuous, with 9/11. The last clause, which you quote (“in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons”), does not extend the scope of the authorisation, but it merely explains its purpose. If it were otherwise, the AUMF would be unconstitutional. (See my earlier comment.)
December 30, 2009, 6:17 pmKazinski says:
Were we arming an army of ex-expatriates to go into Cuba, a la the Bay of Pigs, of course Cuba could assert the right of self defense, but the consequences may be dire.
If you are aware that the US was aware of any planned anti-Cuba terrorist attacks and failed to act, or knowingly assisted in any way I would like to hear the particulars. Just remember that the US is bound by Brandenburg v. Ohio when prosecuting people for inciting violence against Cuba, as much as it is when prosecutions against people inciting violence against the US. And its a pretty loose standard.
December 30, 2009, 6:40 pmMartinned says:
But why would you say that – under your theory of casus belli which admittedly isn’t mine – the rule of Brandenburg v Ohio applies to aiding and abetting foreign terrorism? Why would you ask Cuba to use a rule of American constitutional law to decide whether the US committed an act of war? Remember that under international law you can never plead a rule of domestic law as a defence to excuse a failure to observe the rules.
December 30, 2009, 6:45 pmSteve says:
So if the AUMF is a blanket authorisation to attack any state or organisation who is a threat to the US, it would be unconstitutional.
I didn’t say it was a blanket authorization to attack anyone who’s a threat. It’s an authorization to attack any organization that was involved in 9/11, and by its terms, it gives the President (and not the courts) broad discretion to determine who was involved in 9/11.
If the President said that Orin Kerr was behind 9/11 and should be imprisoned without trial, yeah, the courts might step in. But I don’t see the courts overriding the President’s judgment as to whether a given al-Qaeda organization is part of the same organization that planned 9/11 or just part of the same “brand.”
December 30, 2009, 6:47 pmtarpon says:
Does anyone think he will?
December 30, 2009, 6:49 pmShelbyC says:
I agree with you. But I agree with Martineed that the fact that the original AUMF doesn’t specify a target is problematic. A declaration of war places the US in a state of war with a particular entity. The AUMF doesn’t do that.
December 30, 2009, 6:52 pmMartinned says:
As the Uighur litigation shows, the courts will step in quite a bit earlier than Orin Kerr. An organisation that only shares a name with the organisation that gave us 9/11 could (and should) well be found to be outside the limit of the AUMF. The President’s judgement in the matter should and will receive a significant degree of deference, but that deference will stop well short of, say, allowing the President to go after every and any terrorist organisation.
December 30, 2009, 7:00 pmMartinned says:
Don’t you remember? The US is in a War on Terror!
December 30, 2009, 7:02 pmDNJ says:
I suppose in the same sense that the US Government is harboring terrorists (since it presumably hasn’t caught all terrorists in the US).
December 30, 2009, 7:10 pmChris Travers says:
Send in the Predators to launch air strikes in London!
I am quite sure there are terrorists in the UK that haven’t been caught either…..
December 30, 2009, 7:12 pmSteve says:
An organisation that only shares a name with the organisation that gave us 9/11 could (and should) well be found to be outside the limit of the AUMF.
Do you seriously envision a court requiring the Executive Branch to make an evidentiary showing of the operational linkage between two al-Qaeda organizations? If someone had challenged the US invasion of Afghanistan on the grounds that they hadn’t seen enough evidence of a link between Afghanistan and the attacks, can you even imagine a federal court saying “wait, before you proceed with that invasion, I need to see that the President’s determination that Afghanistan falls within the scope of the AUMF has some basis”? Heck, when was it judicially determined that al-Qaeda itself was behind the 9/11 attacks?
As long as the President’s determination under the AUMF isn’t completely irrational, I can’t imagine a court declaring military action under that statute unlawful. The courts are very, very reluctant to interfere with military action, and the argument that al-Qaeda is just a brand doesn’t present the sort of extraordinary circumstances that would be necessary for a deviation from that tradition.
But I agree with Martineed that the fact that the original AUMF doesn’t specify a target is problematic. A declaration of war places the US in a state of war with a particular entity. The AUMF doesn’t do that.
This sort of discretionary authority isn’t the sort of habit I want to see the country get into, that’s for sure. At a minimum there could have been a sunset, or some kind of subsequent modification.
December 30, 2009, 7:19 pmKazinski says:
There is no need for Cuba to honor US constitutional law, they are free to act in their own self defense as they deem it necessary. However the consequences may be dire.
December 30, 2009, 7:21 pmMartinned says:
The problem with these kinds of cases is usually one of standing. If someone can be found who has standing to sue over this, I don’t see why the Executive Branch shouldn’t be asked to make some showing of how they see the connection between the entity they’re looking to attack and 9/11. In Kiyemba I, the problem was the remedy, not the general concept of looking into the alleged ties between ETIM and Al-Qaeda. (District Court, Court of Appeals, and now the Supreme Court.)
December 30, 2009, 7:59 pmMartinned says:
Homus homini lupus…
Remember, even the strongest man must sleep.
December 30, 2009, 8:00 pmChrisTS says:
Kazinski:
Yemen is not ‘harboring’ terrorists. The Yemeni government was working with the U.S quite effectively up until sometime in 2005/6. WE dropped the ball.
Nor did they ‘release’ any terrorists (I’ve lost track of that inane post). Rather, there was a mass prison break-out in 2006 which led to the creation of “AQ in the Arabian Peninsula.”
Is it really so difficult to recognize that other nations are trying to fight international terrorism and not fully succeeding – anymore than we are? As DNJ observes:
December 30, 2009, 8:01 pmChrisTS says:
I appreciate this comment as I had a student respond to the problem by asking, “Just find out if it’s the same owner of the ship all the time.” Admittedly, this was an intro course. Still, I was dumbstruck. :-)
December 30, 2009, 8:04 pmCrunchy Frog says:
The Barbary pirates were non-state actors, as well as the Apaches, Comanches, and Sioux et al. As well as there are idiots out there willing to self-identify as Al Qaeda, the AUMF will suffice as justification to wage war against them.
Congress can vote to defund the war at any time of its choosing. That it has declined to do so is telling.
December 30, 2009, 8:37 pmArthur Kirkland says:
The United States appears to have been harboring for some time this terrorist, who seems to be an apt target of a legitimate “retrieval” action — at least, according to the standards some have advanced.
December 30, 2009, 9:09 pmBill Poser says:
Isn’t it true that violating the borders of Yemen would not be an act of war even in the absence of cooperation between Yemen and Al-Qaeda if Yemen does not have effective control of the area of the strike?
December 30, 2009, 9:11 pmjukeboxgrad says:
I was going to mention the person that Kirkland just mentioned. Harboring after the fact seems to be a form of “assisted.”
December 30, 2009, 9:17 pmSteve says:
If someone can be found who has standing to sue over this, I don’t see why the Executive Branch shouldn’t be asked to make some showing of how they see the connection between the entity they’re looking to attack and 9/11.
Maybe the Taliban could have sued, they were certainly an aggrieved party. I hope you’d allow for expedited discovery at least.
December 30, 2009, 9:19 pmHm says:
couldn’t this AUMF be expanded to any country with remote ties to AQ (possibly trumped-up ones)? The Philippines, Algeria, Saudi (duh), Pakistan, India, UAE, etc. etc.
December 30, 2009, 11:02 pmLyle says:
Not long after 9/11 actually. Some AQ were driving along in the hinterlands, one made the mistake of using his cell phone, and they got vaporized by a predator drone. Some European officials raised a stink about this; saying it was illegal, etc…
December 30, 2009, 11:16 pmTweets that mention The Volokh Conspiracy » Blog Archive » Does Obama have authority to order military strikes in Yemen? -- Topsy.com says:
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December 30, 2009, 11:31 pmKazinski says:
‘Harboring’ a terrorist? I don’t think this word means what you think it means. The DOJ has been trying to deport him or jail him since 2005. Now Cuba and Venezuela may not understand what an independent judiciary is, or why the US can’t just order the Judge to approve the deportation, but it does seem that the DOJ has taken effective steps to make sure that he is no longer committing terrorist acts.
I’m sure the prosecutor was almost as angry as the commies at the judge granting Posada bail. Lets also keep in mind that refusing to extradite a terrorist while not admirable, is quite different than letting terrorists stage attacks and train operatives on your territory. There is no such (credible) allegation here.
December 30, 2009, 11:39 pmjukeboxgrad says:
We did a lot more for him, aside from refusing to extradite him. See here:
We’ve been willing to support terrorists, as long as they’re our terrorists.
December 31, 2009, 1:49 amJames N. Gibson says:
I though electing Obama was to mean a kinder gentler America more interested in sending in first responders not targeting the attackers commanders.
On a historical note starting in 1794 the United States authorized the keeping at the ready a force of 80,000 militia in case of war. The authorization expired every two years unless renewed by a new statute (inline with the two year re-funding requirement for the Army built in to the Constitution). In 1803 however they passed a statute that didn’t have an expiration date. Three years later Congress then replaced this Statute with a new one calling for 100,000 militia but having a sunset clause of two years. One wonders when the United States stopped having such expirations built into its military statutes.
Outside of this, lets see the present attack drones are built by General Atomics. The navy’s strike drone is being developed by Northrop and there is a helo drone Boeing is working on. The Hellfire missiles are made by Lockheed and the new guided small bomb is a Boeing product. And I’ll throw in the two Anti-missile systems which are either Boeing or Raytheon/Boeing given Iran’s recent actions and Putins recent comments. I think I know were to put my spare change for the next few years.
December 31, 2009, 2:17 amDoc Merlin says:
By your reasoning, the FDA, the SEC, the Federal Reserve, the FCC, the FDIC, the BATF, and various other regulatory agencies are also unconstitutional, as they make regulations with the force of law. In fact, if congress cannot delegate its powers constitutionally, then a very large percent of the executive branch is unconstitutional, on its face.
December 31, 2009, 11:47 amchery says:
there is much discussion about this, I think Obama did what he had to do
January 3, 2010, 12:06 am