h/t War is Boring
Remember this classic exchange from “The Treasure of the Sierra Madre” (1948)?
Dobbs: “If you’re the police where are your badges?”
Gold Hat: “Badges? We ain’t got no badges. We don’t need no badges! I don’t have to show you any stinkin’ badges!”
On Wednesday, Department of Defense General Counsel Stephen Preston and State Department Deputy Legal Advisor Mary McLeod told the Senate Foreign Relations Committee roughly the same thing, saying that the Authorization To Use Military Force (AUMF) passed by Congress three days after the 9/11 attacks is not needed to justify U.S. attacks on perceived enemies worldwide (emphasis added).
The single-paragraph AUMF has been the legal justification for the longest war in U.S. history; everything from the jailing of suspected terrorists at Guantanamo to drone strikes in Somalia and Yemen. Wednesday’s Senate Foreign Relations Committee hearing was supposed to explore how and when that congressional mandate could be revised or repealed. But the biggest surprise was the administration’s top lawyers didn’t think Obama even needed it anymore to fight the war on terror as he pleased.
Asked by Corker, if the 2001 AUMF was repealed “can the president carry out the counter-terrorism activities he is carrying out today,” McLeod said, “Yes I believe he could.”
Going deeper into the legal thicket, both McLeod and Preston said that the Constitution’s Article II gives the president all the authority he needs to take military action. That view was initially promoted in the Bush White House by David Addington, Cheney’s chief counsel, who constantly told his legal critics, “You are either with us or against us.”
Now, 13 years later, McLeod and Preston say the president doesn’t need congressional authorization at all.