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      Wednesday
      Mar062013

      The Threat of an Imperial Presidency

      A U.S. Air Force MQ-1 Predator unmanned aerial vehicle. The U.S. has conducted drone strikes in at least three countries beyond Iraq and Afghanistan. (Photo: U.S. Air Force)

      This article appeared at The Nation on March 11, 2013.

      Civil libertarians, human rights and peace advocates should insist on a renewed Congressional assertion of its power under the Constitution, Article 1, Sec. 8, to take part in declaring war. Among the many reasons for this reassertion is that social movements typically have greater influence over elected Congressional representatives than over the more remote and secretive executive branch.

      Historically, American presidents have “encroached on Congress’ war-making responsibilities, leaving the legislative branch increasingly irrelevant,” according to Bennett Ramberg, a former State Department analyst in the first Bush administration.

      Recent hearings by the Senate Intelligence Committee – on CIA director John Brennan’s authority – and the House Judiciary Committee – into drones – are at least momentary signs that Congress may be ready to reclaim some of its powers. Statements by President Barack Obama literally asking Congress to write “new legal architecture” to “rein in” his presidency and those of his successors, are clear indications that the growth of an Imperial President may be limited. The bipartisan vote of over 200 House members against the administration’s launching of the 2011 Operation Odyssey Dawn in Libya is the most concrete example of legislative unease.

      As Congress considers its options, it is crucial that the public be included in a rightful role. The public sends its sons and daughters to risk their lives in war, pays the taxes that fund those wars, accepts the burden of debt, the paring back of social programs, and restrictions on civil liberties in the name of war. The public has a right to know, obtained through public debate and public elections, the rationale, the costs, and the predicted outcomes of any military venture. James Madison, cited by Ramberg, gave the reason centuries ago: “Those who are to conduct a war cannot in the nature of things be proper or safe judges, whether a war ought to be commenced, continued or concluded.”

      The War Powers Resolution (Section 4(b)) mandates that “the President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States armed forces abroad.” Yet only insistent congressional pressure has forced the Obama administration to disclose some of its internal legal memoranda concerning drones, apparently in exchange for senate approval of Brennan’s nomination. It continues to resist the spirit of Section 4(b).

      Hopefully, the Congressional Progressive Caucus will take up the reform of war-making powers as a major priority. Already, one of the CPC’s co-chairs, Rep. Keith Ellison (D-MN), has expressed the need to reform and reverse the administration’s secret drone war. In the Senate, strong leadership on transparency has come from Sen. Ron Wyden (D-OR). Libertarian Republican senator Rand Paul is demanding to know whether the White House will unleash drone strikes on American citizens. Longtime activist groups like Code Pink suddenly are finding themselves in the center of a national conversation.

      Three senators – Wyden, Mark Udall, and Susan Collins – who voted for Brennan’s confirmation also issued a call on March 5, “to bring the American people into this debate and for Congress to consider ways to ensure that the president’s sweeping authorities are subject to appropriate limitations, oversight and safeguards.”

      By most accounts, this fuss over the Imperial Presidency was not supposed to be happening. The drone wars were supposed to be cheap for the taxpayer, erase American military casualties, and hammer the terrorists into peace negotiations. The assassination of Osama bin Laden was supposed to be the turning point. But even with the wars being low-intensity and low-visibility, the “secrets” have remained in the public eye, especially the drone war.

      From a peace movement perspective, pressure from anywhere for any steps that will complicate and eventually choke off the unfettered use of drones will be an improvement over the status quo. For some like Ramberg, a reform of the 1973 War Powers Resolution is overdue. That resolution, which passed during an uproar against the Nixon presidency, actually conceded war-making power to the president for a two-month period before requiring congressional authorization. The original 1973 Senate version of the war-powers bill, before it was watered down, required congressional authorization except in the case of armed attack on the US or the necessity of immediate citizen evacuation. No president has ever signed the war powers legislation, on the grounds that it encroaches on the executive branch, although most presidents have voluntarily abided by its requirements.

      Ramberg lists the US military actions undertaken after the War Powers Resolution “with minimal or no congressional consultation,” as: Mayaguez (1975), Iran hostage rescue action (1980), El Salvador (1981), Lebanon (1982), Grenada (1983), Libya (1986), Panama (1989), Iraq (May 1991, 1993), Somalia (1993), Bosnia (1993-95), Haiti (1993, 2004), Kosovo (1999), leaving out Sudan (1998) and the dubious authorizations for Iraq and Afghanistan.

      The immediate issue ripe for attention is the drone policy, conducted in Pakistan by the CIA in utter secrecy, but also spreading through Afghanistan, Mali, Somalia, and Yemen.

      Drone attacks clearly are acts of war as defined by the War Powers Resolution, although the WPR was written mainly to contain the deployment of American ground forces. The drone war rests more squarely on the 2001 Authorization for the Use of Military Force (AUMF), the underlying legal rationale for the “Global War on Terrorism.”

      The challenge of reform, as opposed to emergency tinkering, will require prolonged efforts to amend and clarify both the WPR and AUMF. Allowing any president a 60-day period before seeking congressional authorization, as the WPR does, makes no sense in drone warfare. Instead, the president should be required to seek congressional permission if he wishes to target a clearly definable “enemy,” and be required to issue public guidelines, including necessary disclosure, governing the use of force he contemplates. That means:

      First, Congress should establish a special inspector general, like the SIGUR created for Iraq and Afghanistan, to define, monitor and determine civilian casualties (“collateral damage”) from drone strikes. Currently that information is collected by the CIA, which has a conflict-of-interest, not to mention a curtain of secrecy.

      Second, Congress will need to draft guidelines sharply narrowing - or even banning - the use of “signature strikes” which permit drone attacks against targets profiled according to identity, such as young males of military age (which could be civilians, participants in awedding or funeral, etc).

      Third, Congress or the courts will have to restore the open-ended concept of “imminent threat” to its traditional meaning, as an immediate operational threat aimed at American citizens, US territory or facilities. Under the elastic formulation employed by Brennan and others, the simple fact of ill-defined jihadists holding meetings anywhere on the planet is an “imminent threat” justifying military action. And according to the CIA interpretation, the threat is a “continuous” one, carrying over from war to war. But if every “potential” threat is defined as “imminent,” and all the threats are continuous, the CIA, Special Forces and American military will be spread thin indeed from the jungles of the Philippines to the ghettos of Britain.

      The 2001 AUMF was written to justify the unofficial military doctrine of the “long war,” developed by counterinsurgency advisers to Gen. Petraeus and the State Department, like David Kilcullen, who project a conflict of 50 to 80 years duration against ill-defined Muslim fundamentalists. The designated targets of the AUMF are “Al Qaeda” and “associated” terrorist groups. That overly broad definition authorizes a global war in the shadows against forces whose actual links to Al Qaeda are difficult to discern and who may or may not be threats against the United States. If targeted by the US, however, the likelihood of their becoming threats will only increase.

      A recent example in a long list of these targets is Mokhtar Belmokhtar, the 40-year-old Algerian who may or may not have been killed last week in Chad. (New York Times, March 3, 2013) Belmokhtar allegedly carried out the January attack on an Algerian gas plant in which 37 foreign hostages died. He did so in retaliation against France’s military intervention in its former colony of Mali, and against Algeria’s siding with Western counter-terrorism policies. Otherwise Belmokhtar was nicknamed the “Marlboro Man” because of his decades-long involvement in smuggling cigarettes. Ten years ago he led one faction of Al Qaeda in the Islamic Maghreb, before breaking away to form his own force in the Sahel.

      The question is whether the 2001 war on terrorism authorization was written to cover a regional warlord like the “Marlboro Man” whose history is “smuggling, kidnapping and fighting for decades in the Sahel,” or whether the 2001 AUMF is being used as a blanket authorization for official kill lists and CIA drone assassins everywhere.

      Finally, Congress should commission an independent body to evaluate whether the war on terrorism, including the drone attacks, has made Americans “safer.” The rise of the drones, and cyber-war as well, has a lulling effect on public opinion since American group operations are ending and casualties are down. But the 9/11 attacks took place unexpectedly as a result of burning grievances in the Muslim world. The official metrics of safety – how many jihadist “leaders” have been killed, whether insurgent attacks are up or down, etc. – ignore the incendiary hatred and desire for revenge building in Muslim communities suffering from remote drone attacks. A few empirical studies (see Robert Pape, Dying to Win, 2006) have shown a direct correlation between the rise of suicide bombers and US/Western occupation of Muslim lands, but the mass illusion of safety from terrorism tends to persist. A national conversation including the forgotten ways in which we are made less safe by the war on terrorism is sorely needed.

      In perspective, the effort to prevent the restoration of an Imperial Presidency is long and politically difficult, something like reversing the mass incarceration policies and police buildups that followed the neo-conservative’s “war on gangs” campaign of the early 1990s, which the Clinton administration adopted. Many liberals in general, and Democrats in particular, cringe at being labeled “soft on crime” (or “soft on terrorism”). Some on the Left, on the other hand, seem to think that the threat of terrorism is manufactured. However, if another attack should occur against the US, the danger that a second Patriot Act will pass is real. Current US policies inadvertently provoke that possibility, with the drone strikes the equivalent of attacking a hornet’s nest. Therefore, the open window for “reining in” the President’s executive powers could close at any time. Hearings to reform of the 2001 AUMF and the 1973 WPR could not be more urgent.

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      Reader Comments (5)

      Ultimately the question whether Americans are safer is a poltical question that will be determined in elections. The elimination of bin Laden was an important factor in President Obama's re-election as has been the absence of terrorist attacks in the United States. Contrary to what Rand Paul says the ruleof law has deepened under President Obama.

      March 8, 2013 | Unregistered CommenterEd Smeloff

      The president has no authority under the constitution to ever declare war. The constitution also does not give Congress the ability to give away its powers. Therefore, the war powers resolution should be interpreted only as allowing the president to do what he/she already can, which is defend the nation if it is under attack, but nothing more. When Obama or anyone else begins launching attacks on other countries, it must be either pursuant to a declared war by congress, or it is illegal. There's nothing in-between.
      The use of foreign treaties to get around the constitutional restrictions is also illegal, but nobody challenges it. Now Obama simply goes to the U.S.-controlled Nato, and Nato decides to attack Libya, but of course it's the U.S. attacking Libya, waging war against that nation despite the fact that Congress never declared war against Libya. It could not do so, because Libya never attacked nor threatened the U.S., but that's no longer a consideration for the U.S. Empire which wages war against anyone, whenever they want. The same is true for U.S. attacks on Pakistan, Iran, Syria, Yemen and Somalia (and probably some others I'm missing). All illegal attacks ordered by the president on nations without a congressional declaration of war. And the bush-cheney doctrine of declaring a "War Against Everyone Forever" really does meet the requirements of the constitution.
      As far as the use of assassination as a tactic of war (drones are merely the weapon used to carry out the policy of assassination), it appears that it is illegal both under international law and under U.S. law. The Church committee in the 1970s at least implied the assassination attempts against foreign leaders were extra-legal, without legal authority, and there has been no law passed since that time to give the president the authority to order the assassination of anyone, as a means of carrying out a war or for any other purpose.
      Unfortunately, Congress is unable and unwilling to take a stand on these issues. Witness the spectacle of Rand Paul speaking out against the president claiming he has the power and authority to order the assassination of Americans not just on foreign soil, but also here in the U.S. Who joined Rand Paul in his filibuster? Nobody. Not the democrats. Not right-wing pro-war John McCain and Lindsay Graham, who scoffed that the president would never assassinate an American inside this country without good reason to do so. The democrats in Congress are allied with the Republicans in their support of neverending war and the defense industry, and in the elimination of all constitutional rights of citizens.
      All the protections in the Bill of Rights are wiped out by Obama/Holder's claims that the president can order the assassination of an American citizen: the right to be free from arrest without probable cause; the right to be advised of constitutional rights; the right to counsel; the right to be free from torture or cruel and unusual punishment; the right to learn of the charges and all the evidence, to examine witnesses who come forward to testify; the right to present a defense; the right to a trial by a jury of your peers; the right to an appeal; the right to a special and separate proceeding if the death penalty is an issue in the charges. According to Obama and Holder, under a theory never before claimed by any President, Obama can simply ignore all those rights and order the American murdered, and nobody can ever question his decision in doing so. Obama, Holder, Congress -- they all know how wrong this is. But they support it because they essentially support the police state in which all power rests with the politicians and the financial institutions, and the citizens are little more than a nuisance to be controlled and kept in line.
      Without Congress, who is left? Not the Supreme Court, with its current composition.
      The only way this will end is if the American people eventually demand laws be enacted which make it clear that the president cannot assassinate people, not here, not overseas.
      The social media is filled with Obama supporters who angrily denounce Rand Paul, are outraged that anyone would question the Leader Obama who, they insist, can kill anyone he wants anytime because, after all, he's so cute.
      Just wait until Jeb Bush is in office. Imagine all the Americans his gang would like to see assassinated: athiests, abortionists, feminists, the list is endless. I wonder if the Obama supporters will be cheering quite so loudly when that happens.

      March 8, 2013 | Unregistered CommenterNABNYC

      Every time even a single armed service member is sent to observe / monitor / engage in a conflict anywhere in the world - even at a distance with a drone - at that moment the draft should be activated. Responsible generals from Washington through at least Eisenhower warned against a "professional," i.e., volunteer, army. If military action is taken in our name, it must involve all of us. Then, with the prospect of a draft and sending our unwilling / "innocent" / disinterested sons and daughters into battle situations, our leaders would be reluctant to recommend that course of action. And no president would be willing to assume that responsibility by himself. He'd get Congress involved quicker than quick. We need a law that says no draft, no military action. Period.

      March 9, 2013 | Unregistered CommenterDonna Boyle

      Anyone honestly assessing America's history must conclude that a fundamental theme shaping our political landscape has been and continues to be the struggle by the general population to resist and restrain a small but massively powerful ruling elite from perverting governance in this country. In the post Vietnam War / Watergate period public pressure was successful in compelling Congress to restrain military action through legislation such as the War Powers Act, and by similar means to also curb the abuses by the nation's spy agencies. Yet here we are again some thirty years later with Democrat and Republican presidents exerting abusive war powers and spy agencies free to incarcerate, torture and assassinate anyone including American citizens unrestrained by oversight. Why, because while increased oversight and regulatory reforms may have a short term impact in curbing abuses they inevitably fail in the long run. The real root cause of government run a muck, isn't a lack of oversight or regulation laws. The root cause of these abuses, is the massive power of America's ruling elite to use government as a means to further their own greed at the expense of everyone else. America will only be able to build a just, peaceful and environmentally sustainable society, free from government abuse with accountable elected officials, when it equalizes political, economic and social power to eliminates rule by any elite.

      March 11, 2013 | Unregistered CommenterPeter McNamee

      What's next? ... Seems like the chopping block was more entertaining... and more ethical ....l

      March 12, 2013 | Unregistered CommenterPaul C. Henneman
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