In the words of the Times:
The missile strikes on training camps run by Baitullah Mehsud represent a broadening of the American campaign inside Pakistan, which has been largely carried out by drone aircraft. Under President Bush, the United States frequently attacked militants from Al Qaeda and the Taliban involved in cross-border attacks into Afghanistan, but had stopped short of raids aimed at Mr. Mehsud and his followers, who have played less of a direct role in attacks on American troops.
The strikes are another sign that President Obama is continuing, and in some cases extending, Bush administration policy in using American spy agencies against terrorism suspects in Pakistan, as he had promised to do during his presidential campaign. At the same time, Mr. Obama has begun to scale back some of the Bush policies on the detention and interrogation of terrorism suspects, which he has criticized as counterproductive.
Mr. Mehsud was identified early last year by both American and Pakistani officials as the man who had orchestrated the assassination of Benazir Bhutto, the former prime minister and the wife of Pakistan’s current president, Asif Ali Zardari. Mr. Bush included Mr. Mehsud’s name in a classified list of militant leaders whom the C.I.A. and American commandos were authorized to capture or kill.
The war against al Qaeda and the Taliban then-government-now-insurgency in Afghanistan has become a war against Taliban insurgents in Pakistan. These insurgents have a loose alliance with the Taliban in Afghanistan, but different aims and priorities—namely, to overthrow the Pakistani government rather than to overthrow the Afghan government. There is a nice legal question whether President Obama has initiated or accelerated a “new” war against the Taliban-in-Pakistan or is merely carrying on an “old” war against Al Qaida and the original Taliban albeit in a neighboring country. This nice legal question poses some challenges to Obama’s new legal team:
1. Is this new war in Pakistan undertaken pursuant to statutory authority or on the basis of the president’s commander-in-chief power (or both)? The only relevant statute on the horizon is the much-criticized-as-excessively-broad AUMF of 2001, which authorized hostilities against al Qaeda and related organizations in Afghanistan (“those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001”). Does the Obama administration read this statute as authorizing intervention in a civil war in Pakistan?
2. If not, is the new war in Pakistan undertaken pursuant to the president’s commander-in-chief power? And, then, what of the War Powers Resolution, which applies to the “introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations”? Under this law, the president must inform Congress and seek its consent. When can we expect this to happen?
Fortunately, Obama’s nominee for head of OLC, Dawn Johnsen, has announced a new era of openness, and so the OLC’s legal judgments on these important issues will arrive soon. How she will reconcile disclosure of an OLC memo that provides the legal justification for the military intervention in Pakistan with the Obama administration’s refusal to officially acknowledge this “covert” action remains to be seen.
Update:
I have deleted a comment that denigrated a public figure in an offensive way. Because I don’t have the time to monitor comments on a regular basis, and am not willing to provide a vehicle for further disparagement of public figures, journalists, academics, and others, I will disable the commenting function for future posts until a solution to this problem is reached. This is deeply unfortunate but I see no alternative.
I had the same question when I read the NYT story. I am presuming the answer is yes, but I want to know more. Actually I confess to being ignorant about Mehshud, and wonder what the Times says when it says "Mehsud and his followers ... have played less of a direct role in attacks on American troops." What role is that?
For that matter, I still wonder how the other AUMF, authorizing the original war in Iraq, can be stretched to encompass the morphed mission there.
Perhaps you just meant to type Afghanistan--if so, a fair question, given how much that conflict has mutated since our original commitment. However, if that wasn't a slip, just note that there are two separate relevant statutes in play here--the one commonly referred to as just "AUMF" authorizes military action against al Qaeda and its supporters, while the Iraq resolution authorizes action against Saddam Hussein's regime in Iraq. The former is the basis for most of the more creative assertions of presidential authority in the wake of 9/11, where those assertions were not solely based upon constitutional provisions.
No, my aside was about the 2002 Iraq AUMF. The war against Saddam that this resolution was all about ended years ago, as did the official occupation. The operative language is:
Whatever the policy merits of our current mission in Iraq -- which I am not trying to debate here -- it is hard to make the language of the 2002 AUMF stretch to authorize it. I find that more of a stretch than reading the 2001 AUMF to encompass this operation in Pakistan.
As an amateur democratic theorist on the internet, I think it will be healthy for us all if we debate the merits and consequences of executive decisions themselves, rather than focus on more arcane legal issues.
You'd think.
I think the appropriate question here, at least in my own mind, is not one of pure geography but of who the enemy is. I would be more comfortable if I knew there was a strong nexus between the Mehsud faction and Al Qaeda or the Taliban. I suppose another theory is that the state of Pakistan is our ally in the war against those actors, and Mehsud is Pakistan's enemy in that war. In any case, I would like to know more.
(I also suspect that Prof. Posner really does not care much whether the AUMF authorizes this operation or not, and is posing these questions tongue-in-cheek. No matter. I am grateful that he posed the questions and left the thread open for comment.)
I don't care whether the supreme court agrees and I don't believe that the vast majority of people care.
Agreed. Especially not with Pakistan having nuclear weapons. Scarey.
Given the popularity of the US in the Middle East and South Asia, American involvement in Pakistan is as likely to strengthen the anti-government forces as it is to weaken them. If examining the legal basis for such a decision gives the Obama administration some pause, that is a good thing.
Perhaps, as Houston Lawyer suggests, no one really cares whether it is legal or not to launch such attacks. That aside, the process of ascertaining the legality of such action will provide time to make sure that the action taken is worth the costs long and short term.
I submit to you that Yoo's memo asserts significant authority. If Yoo's reasons are bogus, as many of Obama's supporters have asserted, can you think of others that would satisfy you now that BHO has broadened the Afghan front to parts of US ally Pakistan?
Neither do I see much chance of the new administration seeking any open authority.
The whole Pakistan/Afghanistan border section is functionally one area and all these groups cross pollinate freely with Al Queda which is the target of the 2001 AUMF.
The OLC will likely not be asked to issue an opinion so the will be no conflict.
I have my doubts about our whole strategy in Afghanistan but these types of attacks fit into any strategy. We will still be blowing up these types of people one way or another.
The problem with attacking Iraq, is Iraq had nothing to do with Al Queda, 9/11, there were no weapons of mass destruction, Iraq was no threat to the US. As Obama said then:
I agree. But who is going to do the thinking? Congress just passed a giant stimulus without even reading it.
The enemy has not changed.
The Taliban is a Pushtun Islamic fascist movement that always covered the Pushtun region covering South Afghanistan and the Pakistani tribal areas. The Pushtun do not recognize the British colonial border between the two countries and the Taliban are not two movements - one Afghan and the other Pakistani.
Al Qaeda has concurrently occupied the same region since the the war against the Soviets.
The fact that the Taliban and al Qaeda have added the Pakistani government to their enemies does not mean that their war against the United States has ended.
We have been at war with the Taliban and al Qaeda in Pakistan for years since they fled into the tribal areas after being routed from Afghanistan.
The original AUMF still applies no matter where the enemy is located. It is not geographically or temporally limited.
The enemy has not changed.
The Taliban is a Pushtun Islamic fascist movement that always covered the Pushtun region covering South Afghanistan and the Pakistani tribal areas. The Pushtun do not recognize the British colonial border between the two countries and the Taliban are not two movements - one Afghan and the other Pakistani.
Al Qaeda has concurrently occupied the same region since the the war against the Soviets.
The fact that the Taliban and al Qaeda have added the Pakistani government to their enemies does not mean that their war against the United States has ended.
We have been at war with the Taliban and al Qaeda in Pakistan for years since they fled into the tribal areas after being routed from Afghanistan.
The original AUMF still applies no matter where the enemy is located. It is not geographically or temporally limited.
1. "What I am opposed to is a dumb war."
Question: How do we define a "dumb war"? Using His Majesty's flexible jargon, both the Civil War and World War II were "dumb" and probably unnecessary wars. Hey, we could have lived with a Hitler-dominated Europe, right? Who'll die for Danzig?
2. "What I am opposed to is a rash war."
Really? His Majesty has a very convenient memory--or did he just forget everything that happened in the 15 months leading up to our invasion of Iraq? And how about those congressional debates and votes? Were those just Reichstag rubber-stamps for Adolf Bushhitler? Rash? Compared to what? Oh, maybe like ramming through and signing a trillion-dollar stimulus package in a matter of days that nobody has even read? Kind of like that?
3. "What I am opposed to is the cynical attempt by Richard Perle and Paul Wolfowitz and other arm-chair, weekend warriors in this Administration to shove their own ideological agendas down our throats, irrespective of the costs in lives lost and in hardships borne."
Nice talk...from a "community organizer" with a paper-thin resume and a regular habit of voting "present."
The naivete' and lack of knowledge here is quite stunning. Just AnO bserver, what exactly should the US Government do to prove to you and any one else like you that there are connections between Mehsud and Al Qaeda or the Taliban ?? Let you in on their military intel ?
Fighting enemies who are amorphous and have no use for any organizational conformity can be tough at the best of times. It does'nt help when there are so many people in this country who have no clue as to what is going on ( i am not even going to talk about the geo-strategic importance of Afghanistan and the potential for a failed Islamic state like nuclear armed Pakistan)
Just An Observer, here is just an observation - may be you should check out the Long War Journal Blog by Bill Roggio. You may learn something that you didnt from the NYT or the WaPo.
The incessant black-balling of George W Bush has it's own consequences. Karma has this strange way of getting back at you. Obama supporters may be beginning to learn this and may (sheepishly and secretly) acknowledge that their man is following in Dubya's footsteps.
It's only going to get better from here on. Pakistan has now surrendered the region of Swat to the "Taliban" and Obama is sending 17,000 extra troops to Afghanistan. While legal beagles have the easier task of sratching their heads on what the legal basis of US military actions are, and what constitutes the "battlefield", the military has the far more onerous task of operating under the law AND fighting the enemy.
May be , just may be people on the left will slowly begin to realize the predicament that faced the previous administration. assuming they can summon the honesty to do so.
How DARE you ask such uncomfortable questions?? Raaaaacist !!
/sarc
Most progressives (from my POV) have no problem with the previous administration's intervention in Afghanistan, only with the execution of same over the long term. the AUMF was on the up and up, and the need for the invasion was explained and understood by the majority of the American people.
Iraq...Not so much. I'll admit that in '03 I drank the cool-aid. I didn't support the war or the invasion but I genuinely believed that there were WMD's present. That invasion was also "legal" in the narrow sense.
Whether the ongoing strikes in Pakistan are legal is important to know. America is a nation of laws based on the constitution. Absent rule of law, what is there? This isn't a nation like France or Japan that has a common ethnic, linguistic, or historical roots dating back thousands of years. What America has is the consent of the governed based on an accepted set of rules.
Part of that is the expectation that those at the top will do what needs to be done according to some identifiable scheme. Our president is not invested with unlimited powers, but rather only those enumerated in the constitution or subsequently created/expanded by Congress and the court.
So to bring this back - Knowing if the President has authority to attack in Pakistan is genuinely important to know, and tossing darts about Obama/Bush misses the dartboard entirely.
Actually, I am chastened at my shallow knowledge of the factions in the Pakistani Taliban -- and I conceded that up front. Assuming an obvious connection between Mehsud and the Al Qaeda-Taliban alliance, which was my original presumption above, then I don't see that the legal question posed by Prof. Posner is problematical because the 2001 AUMF language is so open-ended.
The policy implications of getting more deeply involved in Pakistani factionlism are a serious matter regardless of legalities, and I will take your advice to educate myself better. I suggest that I am not alone, and lots of folks across the domestic political spectrum will need to learn more as the war morphs into Pakistan.
Seattle Law Student,
I assure you our Military does nothing out of the blue.
It may seem that way to you as Diane Feinstein blurted this out at a hearing. She was not supposed to. She released classified information in a most stupid manner. I think she just forgot.
Countries, including ours, do things in wartime in secret. They have to. But, with the Feinstein's of the world in charge, it is a most dangerous game and people will probably die, but we will never know. She never claimed any moral or legal outrage over the act. She just forgot she wasn't supposed to tell. Wonderful. Sure makes our allies feel comfortable with such stupid people privy to classified information.
On the basis of that case, it seems pretty clear that even assuming as follows:
1) Obama cannot derive adequate authority to widen the Afghanistan theatre into Pakistan on the basis of the 2001 AUMFs alone, and
2) Existing debate as to whether his inherent authority as Commander-in-Chief (along with other legislative posturing) nonetheless leaves his actions' compatibility with the WPA an open question,
Absent a legal Congressional expression of disapproval, interbranch deference demands resolving 2) in favor of the Executive as default.
Given, Campbell can be criticised for a number of reasons. Foremost in my mind is that it neuters the WPA into irrelevance. After all, the very conduct the (never repealed) WPA intends to abridge is exactly the type of Executive overreach that wouldn't be adequately addressed by (often inefficient and always politically suicidal) "non-war" resolutions.
No, it is called the Sacrament of the Sick, these days, not Extreme Unction. We can only hope they are very, very sick.
Name five.
What America has is the consent of the governed based on an accepted set of rules.
Part of that is the expectation that those at the top will do what needs to be done according to some identifiable scheme.
Like read legislation before passing it, or paying taxes before collecting them from others?
Do non-state actors get to hide behind laws regarding states?
What disadvantages are we required to accept in the case of non-state actors appealing through their proxies to the laws regarding states?
I don't know how you can infer that Obama believes WW II and the Civil War are "dumb wars." They were obviously wars of necessity, which is more than you can say about the vast majority of US foreign interventions. Certainly the current Iraq conflict (as opposed to the Persian Gulf War) and the Vietnam War can be considered a "dumb wars," based on the actual threat to US national interests (slim to non-existent), the stated grounds for the wars, and the way they were conducted.
The current Iraq conflict is a "rash war" because it was poorly planned and executed. While the immediate overthrow of the regime took only a few weeks, there was no planning for the aftermath, something we are still dealing with today.
In contrast, the Persian Gulf War had limited objectives and once those objectives were achieved, the coalition forces left. The "objectives" of the current conflict are still unclear. The Bush Administration's stated goal of an "Arab democracy" may or may not still be met. It is currently being met only because the US continues to occupy the country (and fight their war). I will bet that within five years after US troops leave it will turn into the typical "Arab democracy": one party rule based on personality, similar to Egypt.
Come on guys, can't you see the obvious? Any military action carried out by the Fascist BusHitler regime must slaughter innocent civilians, and is clearly criminal. Noble drone strikes carried out by the sacred Demo leader, the Obamassiah, are holy sacraments.
Not quite--even Obama's military makes mistakes. From the American Forces Press Service:
In order of importance
Eli
Seattle Law Student
Nancy Pelosi
Hillary Clinton
Barack Obama
That is a legitimate question, and while I'm not an authority on the Vietnam War I think there are some obvious and substantial differences.
1) Nature of the enemy. In Vietnam we chose to suppress popular political movements, we intervened with the express purpose of preventing the Vietnamese from choosing their own form of government. The Viet Minh had no record of aggression against the US, quite the contrary, Ho Chi Minh made overtures of friendship to the Truman administration.
In Afghanistan we overturned the Taliban government because they hosted and protected AQ, who did attack us. AQ is not a broad-based political movement. They are fringe religious extremists.
2) Scale of casualties. In Cambodia we cannot be certain but civilian deaths are estimated at 100,000-600,000. In Pakistan I am guessing that civilian deaths are below 1,000. Anyone have better info?
3) Domestic political support. The Vietnam War was deeply unpopular in the US and it divided our nation severely. Today, support for continued pursuit of AQ is very broad based, and something that liberals and conservatives generally agree on.
Raven's right. The US admitted a screwup in the sense that they did not discover how many civilians were housed with the terrs before the strike.
The difference is that now it's okay. Stuff happens.
Didn't used to be okay.
Changed sometime last month.
No, it is NOT okay. But frankly, I don't know what the best solution to the problem of civilian casualties in Pakistan is.
The difference is that the new president rightly criticized the previous administration for starting a stupid, illegal, counterproductive war of unprovoked aggression against Iraq.
What is also different is the willingness to investigate, admit when you screwed up, and figure out how not to screw up again. That, instead of insisting for weeks or months that it didn't happen.
Frankly, I think the "air war" approach is stupid when applied to the fighting there. To me, it's the equivalent of police in L.A., for example, calling in an air strike to level an entire occupied apartment complex because there's a murder suspect hiding in one of the apartments.
The military investigation is most certainly not new.
What is new is that critics are not howling about Bush's war crimes, or war crimes at all.
That changed sometime last month.
* War criminal!!!
* Truth and reconciliation commissions!!!
* Unitary Executive!!!
* Illegal war!!!
* Shredding the Constitution!!!
* Evil Neocons!!!
* Impeach now!!!
* Yeeeeaaaaaaaarrrggghh!!!!!!!!
Appropriate
criticismsexcuses to use when Obama performs the exact same actions:* Maybe the New York Times isn't telling us the whole story.
* I am not familiar with "Mehshud" so I won't pass judgment.
* Obama promised to become a war criminal during his campaign, so he deserves a pass for his war crimes.
* We haven't even slaughtered a thousand civilians in Pakistan yet. Wake me when we kill enough to care about.
* It's okay for Obama to start a stupid, illegal, counterproductive war of unprovoked aggression against nuclear-armed Pakistan, because Obama rightly criticized the previous administration for starting a stupid, illegal, counterproductive war of unprovoked aggression against Iraq.
Huh?
You're implying that Bush's invasion of Afghanistan did not have widespread support among liberals. But it did. Shortly after that invasion, Bush's approval ratings were at the highest levels ever recorded for any president in history. About 90%. Which obviously means that "most progressives" did indeed support "the previous administration's intervention in Afghanistan."
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aubrey:
You're implying that there were lots of complaints about Bush's strikes into Pakistan. Really? Prove it.