Posted by Eric Posner:
New war, new legal issues...
http://volokh.com/archives/archive_2009_02_15-2009_02_21.shtml#1235253289
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 [1]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.
References
1.
http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf
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