New war, new legal issues...

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.


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