The 9/14 Presidency

Barack Obama is operating with the war powers granted George W. Bush three days after the 9/11 attacks.

If you believe the president’s Republican critics, Barack Obama takes a law enforcement approach to terrorism. His FBI came under fire for reading Umar Farouk Abdulmutallab, the Nigerian national who nearly blew up an airplane on Christmas, his constitutional rights. His attorney general was blasted for wanting to give 9/11 mastermind Khalid Shaikh Mohammed a criminal trial in lower Manhattan. Republican Sen. Scott Brown rode to his historic upset victory in Massachusetts in part due to this slogan: “In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.” Every sign suggests the GOP will make terrorism a wedge issue in the 2010 midterm elections. “As I’ve watched the events of the last few days,” former vice president Dick Cheney said shortly after the Abdulmutallab attack, “it is clear once again that President Obama is trying to pretend we are not at war.”

It’s true that the president’s speeches and some of his administration’s policy rollouts have emphasized a break from the Bush era. In the Quadrennial Defense Review, the guiding strategy for defense spending released every four years, the administration excised any reference to the “long war,” previously the go-to euphemism for the global war on terror. In a major speech last summer, the president’s top adviser on terrorism and homeland security, John Brennan, said explicitly that Obama rejected the phrase “global war” because “it plays into the misleading and dangerous notion that the U.S. is somehow in conflict with the rest of the world.” In a USA Today op-ed piece last February, Brennan argued that Republican critics were playing into Al Qaeda’s hands by suggesting U.S. courts could not handle terrorism prosecutions.

But these differences in style mask a sameness in substance that should worry civil libertarians. When it comes to the legal framework for confronting terrorism, President Obama is acting in no meaningful sense any different than President Bush after 2006, when the Supreme Court overturned the view that the president’s war time powers were effectively unlimited. As the Obama administration itself is quick to point out, the Bush administration also tried terrorists apprehended on U.S. soil in criminal courts, most notably “20th hijacker” Zacarias Moussaoui and shoe bomber Richard Reid. More important, President Obama has embraced and at times defended the same expansive view of a global war against Al Qaeda as President Bush.

The U.S. still reserves the right to hold suspected terrorists indefinitely without charge, try them via military tribunal, keep them imprisoned even if they are acquitted, and kill them in foreign countries with which America is not formally at war (including Yemen, Somalia, and Pakistan). When Obama closed the secret CIA prisons known as “black sites,” he specifically allowed for temporary detention facilities where a suspect could be taken before being sent to a foreign or domestic prison, a practice known as “rendition.” And even where the Obama White House has made a show of how it has broken with the Bush administration, such as outlawing enhanced interrogation techniques, it has done so through executive order, which can be reversed at any time by the sitting president.

The font of this extraordinary authority is a congressional resolution passed just three days after the 9/11 attacks. It says, “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Just as President Bush said the 9/14 resolution gave him the wartime powers to detain, interrogate, capture, and kill terrorists all over the world, so too does President Obama. On March 13, 2009 Justice Department lawyers said in a Habeas brief before the D.C. Federal Court that this resolution,  known as the AUMF, or authorization of the use of military force, granted the administration detention authority.

It’s true that the Obama administration has rejected the early Bush administration’s assertion of an almost supreme wartime executive, or that the president’s wartime authorities can overrule laws passed by Congress. Also President Obama asserts that the powers granted by the 9/14 resolution must cohere to international laws of war. But these differences are less significant than one might imagine.

A speech last month from Harold Koh, the State Department’s legal adviser, acknowledged that the international laws of war have not properly contemplated a war against a global terror network. “Those laws of war were designed primarily for traditional armed conflicts among states,” Koh said. “Not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is ‘necessary and appropriate’ under the AUMF requires some ‘translation,’ or analogizing principles from the laws of war governing traditional international conflicts.”

As long as the AUMF remains the law of the land, any change in the legal conduct of our open-ended, undeclared war will be, at most, cosmetic. While it’s true that President Obama appears more reluctant to use these extraordinary powers than his predecessor, he is nonetheless asserting, enthusiastically at times, that he has such powers. And because so much of the American war on terror is conducted in secret, it is difficult to know what Obama is and is not doing to wage it.

The Mirage of Accountability

Unlike other wars in American history, a global war on a terrorist network has no geographic boundaries and no clear endpoint. FDR interned Japanese Americans until the end of World War II, an extraordinary assault on civil liberties. But at least there was no doubt what the end of that war would look like.

“The danger of a war that takes place everywhere and lasts forever is that it gives the president almost limitless authority to detain or even kill U.S. citizens and civilians anywhere in the world,” says Ben Wizner, an attorney with the American Civil Liberties Union. On February 3, Dennis Blair, director of national intelligence, confirmed that power in congressional testimony, telling lawmakers that the administration had the right to kill American citizens who joined Al Qaeda without court involvement or consultation with Congress. The only legal authority required, Blair said, was “special permission,” which amounts to presidential approval on a case-by-case basis.

This position troubles Philip Alston, the United Nations special rapporteur for extrajudicial executions, whose requests for information on CIA drone strikes has been stonewalled by the Obama administration. “The U.S. under President Obama has apparently maintained the Bush administration’s view that, because it is involved in a global armed conflict against Al Qaeda, it is permitted to target and kill relevant individuals anywhere in the world,” Alston says.
The White House has repeatedly defended using the same powers that were frequent targets of Democratic criticism when Bush and Cheney were exercising them. In a December speech at West Point announcing a surge of 30,000 troops in Afghanistan, Obama underscored that the action was authorized by the September 14 resolution, which, he noted, passed by a vote of 98 to 0 in the Senate.

In the February 1 issue of The New Republic, Jack Goldsmith, a Justice Department lawyer during the Bush administration, argued that Obama has assumed his predecessor’s war powers in part because the early overreach of Bush prompted safeguards that make the executive branch more accountable. Goldsmith, who had been a sharp critic of Dick Cheney’s views on executive power, pointed to “armies of lawyers” in the current administration whose sole job is to make sure highly classified programs adhere to congressional restrictions. “The enhanced powers of the presidency after September 11 have become part of the national fabric, in short, because they have received the consent of our national institutions, and thus of the people themselves,” he concluded.

It’s true that elements of Bush policy have been reined in by other branches of government. The Supreme Court rejected the military commissions that were first developed for detainees sent to Guantanamo. Obama has remade the commissions, with help from Republicans in Congress, to comply with the high court’s ruling. Congress, which the Bush administration largely ignored when it developed its post-9/11 National Security Agency (NSA) surveillance program, has now reauthorized the Federal Intelligence Surveillance Act (FISA) to allow for much of what was decried as warrantless surveillance of Americans’ phone calls and email. And Congress has asserted at least limited oversight of the war: The top Republican and Democratic leaders of Congress, along with the chairmen and vice chairmen of the intelligence committees—the so-called Gang of Eight—are consulted on major intelligence programs and counterterrorism operations, as they were prior to 9/11.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Zenmaster||

    First comment.... yaaaaaayyyy....

  • Xeones||

    Wow. Who could have predicted that one president would continue the abuses of power instigated by his predecessor?

  • Jimmy 'Crack' Corn||

    Hmmm, I wonder if both Bush and Obama knows something about these terrorists that the rest of us dont.

    Strange how these two seemingly disparate people are behaving the same way once they actually inhabited the office.

  • ||

    Reason, Matt Welch, Nick Gillespie,
    Want a 500 comment item on your website today? then post the Wiki Leaked Collateral Murder? story. We realize that your Koch masters will not be happy as it is damaging to the war profiteering military industrial complex but you have to retain your credibility. The story is gonna get bigger and you will eventually have to acknowledge it:

    1.Destroying a makeshift ambulance promotes terrorism in all it's forms. This does not make us safer.

    2.Destroying a makeshift ambulance does not make oil cheaper. The brainwashed set here seem to still cling to the idea that we are in Iraq for "cheap oil" which is the LEAST believable reason for the war. Bush and Cheney came into their presidency making many public statement about the horrors of "cheap oil'. Saudi Arabia(the close US ally and islamo fundamentalist redicalizing agent) repeatedly threaten Sadam because he was producing "too much" oil. Bush-Cheney texas buddies were particularly hard hit by $15,$20 and $30 oil because they were marginal supplier int he world market at those low prices!
    3.Destroying a makeshift ambulance is not gonna spread "democracy".

    Thus, all the official reasons for us wasting our resources in the middle east are BS. If you do not acknowledge that then you are in fact not "supporting the troops"....you are helping send kids to their death for BS reasons.

  • a||

    It truly is astonishing that no one at Reason has touched the WikiLeaks story... but they've got neoconservative supreme Eli Lake writing about foreign policy. I thought at least Moynihan would attack WikiLeaks for conspiracy-mongering, but I suppose even he knew better.

  • ||

    Me and Moynihan don't take kindly to the communist sympathyzers over at wikileaks. You can' believe all this crap on the internet, besides if your going to democratize a country you need to blow up all the illegitimate ambulance services...do you just want random people running around trying to save wounded photojournalists in unlicensed craptastic ambulances?!

    that would lead to anarchy and the spread of islamofacisism!

  • ||

    Don't worry reasonoids! If Reason will not cover this then I will take over and cover this important story. ... Of course context is important here. Let me explain. Reuters got this video quite awhile ago and they were satisifed that the army did everything by the correct rules of engagement so they chose to not release this to the public because it would only stir up terrorism by those who don't really understand what is going on in a war. Our media is pretty damn good at getting the really controversial stuff right out in the open! Of course the media is actually just trying to protect us.

    The CIA actually thought it was important that the people knew the truth and some how they are so incompetant that they lost the video and never got a chance to tell us, but they were going to because they actually think this video is good, because it shows how efficient our technology has become and this explains why we are now kicking butt in Iran and Afgahnistan. If we have another surge we can use this same strategy to really turn the tables in Af/Pak and this will help lower oil prices...so you see how this may seem bad but it is really good news...just don't go all pinko and ask any more conspiracy theory questions.

  • ||

    oh it is not so astonishing..we don't want to encourage he conspiracy nuts...people should wait to get news from official sources. GE has a great news channnel on TV...just watch that. Rupert murdoch also puts together some great stuff...check out Red Eye...hilarious and they don't put up with this pinko conspiracy crap.

  • nj||

    I suspect they will address the story eventually, but it is ridiculous that it hasn't been talked about. It doesn't get bigger than this

  • ||

    I sent a message to Welch. I can only hope they get on it. This foreign policy article seems, well, pretty critical. Neocon or not, it's on the money.

  • ||

    Don't worry Welch, I got it covered...we don't need to draw any more attention to this story...the government will let the people know if anything important comes up. The global war on terror is going well...wikileaks is mostly for communist...don't even bother looking at the other stories there. Check out Weizel's new column at the Washington Post he is where the real stories are breaking.

  • ||

    I seem to recall back in the early days of the Iraq war some photographer got himself lit up because someone pointing a zoom lens looks an awful lot like someone pointing a rocket launcher.

    Sprinkle in a couple of bodyguards carrying AK-47s, and an unmarked van that pulls up and disgorges more guys in plainclothes, and I am not convinced anyone did anything wrong here.

  • Art-P.O.G.||

    While unfortunate, I'm still confused about what's supposed to be so damning or groundbreaking about this whole 'collateral murder' incident.

  • ||

    "unfortunate" come on pussy...you had to enjoy seeing that van blown up like that...it was better than carzilla at a monster truck rally. When that wounded terrorist from reuters was getting pulled into the insurgents vehicle you had to be thanking your lucky stars that we were being protected so well by uncle sam before he could get away.

  • Jimmy 'Crack' Corn||

    Thanks R C and Art. I was beginning to feel like I was missing something real important.

    News media types love to go into harms way for the stories they can get. It advances their careers and often improves their lot in life. It is collateral damage, plain and simple.

    And the non photographers appear to be carrying AK-47s or RPGs. Maybe they were the Taliban or other such a-holes. So maybe our soldiers did a great job.

    It just doesn't seem to be so cut and dried to me...

  • ||

    right on RC Dean...Obama and Bush are fucking awesome for using our resources so well....we are all safer now and nobody that counts had to die to make it happen...look at the cheap oil we get now...a few more days like that and pretty much all the terorist will be dead and democracy will be spreading

  • ||

    really "unmarked vans" fucking driving on roads and shit...what is next?! these islamo fascists need to be destroyed.

  • Zeb||

    Does anyone know what the point of Cosmotarian Overlord is? Is it performance art, a spoof? I am never quite sure how to take its comments.

  • Art-P.O.G.||

    It's supposed to be a spoof troll, but it's not actually funny.

  • Jimmy 'Crack' Corn||

    I think he just wants to be self-righteously indignant.

  • IceTrey||

    Right because guys in plainclothes in a van with two little girls in the front seat and picking up wounded are a real threat.

  • Jimmy 'Crack' Corn||

    "IceTrey Right because guys in plainclothes in a van with two little girls in the front seat and picking up wounded are a real threat."

    Is that what they said on the video? Did they see two little girls on the front seat, and then say "blast the little bitches"?

    Talk about a long jump to conclusions...

  • Meh...||

    Wikileaks, the website devoted to publishing classified documents on the Internet, made a splash today with a video claiming to show that the U.S. military "murdered" a Reuters cameraman and other Iraqi "civilians" in Baghdad on July 12, 2007. But a careful watching of the video shows that the U.S. helicopter gun crews that attacked a group of armed men in the then Mahdi Army stronghold of New Baghdad was anything but "Collateral Murder," as Wikileaks describes the incident.

    There are a couple of things to note in the video. First, Wikileaks characterizes the attack as the U.S. military casually gunning down Iraqis who were innocently gathering on the streets of New Baghdad. But the video begins somewhat abruptly, with a UAV starting to track a group of Iraqi males gathering on the streets. The voice of a U.S. officer is captured in mid-sentence. It would be nice to know what happened before Wikileaks decided to begin the video. The U.S. military claimed the Iraqis were killed after a gun battle with U.S. and Iraqi security forces. It is unclear if any of that was captured on the strike footage. Here is what the U.S. military had to say about the engagement in a July 2007 press release:

    Soldiers of 1st Battalion, 8th Cavalry Regiment, and the 2nd Battalion, 16th Infantry Regiment, both operating in eastern Baghdad under the 2nd Infantry Brigade Combat Team, 2nd Infantry Division, along with their Iraqi counterparts from the 1st Battalion, 4th Brigade, 1st Division National Police, were conducting a coordinated raid as part of a planned operation when they were attacked by small arms fire and rocket-propelled grenades. Coalition Forces returned fire and called in attack aviation reinforcement.

    There is nothing in that video that is inconsistent with the military's report. What you see is the air weapons team engaging armed men.

    Second, note how empty the streets are in the video. The only people visible on the streets are the armed men and the accompanying Reuters cameramen. This is a very good indicator that there was a battle going on in the vicinity. Civilians smartly clear the streets during a gunfight.

    Third, several of the men are clearly armed with assault rifles; one appears to have an RPG. Wikileaks purposely chooses not to identify them, but instead focuses on the Reuters cameraman. Why?

    http://www.weeklystandard.com/.....d-anything

  • Meh...||

    A New York Times article confirms that the tape has indeed been cut. There are 21 additional minutes of tape:

    http://www.nytimes.com/2010/04.....ad.html?hp

  • ||

    the real point the NYTimes forgot to add was that the suspiciously "unmarked van" that was trying to pick up that insurgent lamely faking that injury as he crawled down the street did not have the appropriate permits to be offering medical services...the guy could have been seriously injured by these fake medical providers so the helicopter was just trying to keep him safe buy blowing the whole thing up...lucky for those Iraqis that we can show them how a real medical system works.

  • Jimmy 'Crack' Corn||

    Cosmo...
    Instead of a search for truth on this subject, you appear to be enamored with your own faceteous dialogue.

    Me thinks your are just an ass in comic's clothing.

  • ||

    thanks guys...now don't even bother watching the video. as usual the NY Times and the Pentagon has given you all you need to know...lets move on to something more fun.

  • ||

    Anyone with a assault rifle is probably Al Qaeda, better safe than sorry. Once I saw that I stopped watching the video...once you see the context it makes since to blow up ambulances. It seems that some here a bit too caught up in Emily Post type etiquette. The truth is that we had to fight these guys over there or fight them over here...which would you rather see?

  • Jimmy 'Crack' Corn||

    Another knee slapper Cosmo!

  • ||

    When has a president limited his own power? Any examples?

    OW!!! I hurt myself laughing!!!

  • ||

    Ahem.

  • Sean W. Malone||

    Further demonstrating that George Washington was, and will always be, the only good president the US has ever had.

  • Tim||

    Barrack said the check was in the mail, and you believed him.

  • Warty||

    Shut the fuck up, Cosmotarian Overlord.

  • ||

    come on warty...I'm just getting psyched up...seeing all those inurgents getting killed gives me a boner...admit it ...makes you kinda hot too. What the fuck makes those people think they can carry gun around?!...we need to show them how we like it over here in AMERIKA....blow the fuck out of anyone trying to carry weapons I say...that is DEMOKRASY and we gonna teach them real good! and the asshole with a camera? that will teach him to try and steal our souls!

  • Art-P.O.G.||

    CO is the worst spoof troll ever.

  • Jimmy 'Crack' Corn||

    AmeriKa, Demokracy.

    LOL. Stop, you're killing me!

  • Meh...||

    "blow the fuck out of anyone trying to carry weapons I say"

    Blow me first!

  • ||

    all those kids walking around in a war zone? why? what did they expect to happen when they bombed the world trade center...now they are learning a lesson...Like Freidman and the serious intellectuals here said, we need to make sure these folks need to learn to suck on this . They need to learn to appreciate us for saving them! I'm sick of all this whining I am hearing.

  • ||

    Okay, now. All you PTSD-afflicted war veterans stop going on about stuff!!

    If any of you jokers have any combat time in any war, I'll eat my own shorts. If you did, you would be at least more understanding about what soldiers do under fire and how difficult it is, in truth, to make "correct" decisions in a firefight.

    Second, if you think that all of the video out of any of "our" wars has been just the way it happened, you're off your medications again. One of the primary weapons used these days is the chopped video or the full video without sound, or the full/partial vid without any background, or the entirely faked scene with lying voice-over, or ... you know where I'm going; yes?

    It isn't possible, without the expertise and the right software to determine whether a video lies by commission; impossible at all to determine if it lies by omission. Remember the recent story of the Arab kid in Palestine killed by the IDF? The one who came back home five days later, to a full play in the local Gaza press? Yeah, that one in the video, lying on the ground.... see? Don't get your bowls in an uproar over stuff you can't figure out and other stuff that you can't possibly understand, since you've never been there. And no, sorry, but a 4 year tour as a West Point REMF or Ivy League Reservist REMF doesn't make the cut, either.

  • ||

    if conservatives were like liberals, we would be out protesting the war. But we didn't protest when Bush was president and we won't now. Liberals, on the other hand, are very dishonest. They were anti war during Bush; now total silence or else using the war to drum up support for obama, which is totally shameless, since they don't support our side and that is just a cynical ploy to use the feeling that conservatives have about the US.

    All those stories about our troops coming home in body bags and, more importantly to the liberal mind, all those stories about Iraqis and Afghanis killed by our troops, all gone. Bush was a war criminal, Obama is not. Under Bush our troops were vile murdereres, under Obama not.

  • ||

    "if conservatives were like liberals, we would be out protesting the war."

    Conservatives have to go to their jobs, so they can pay their bills.

    I've also heard than some conservatives think protesting is a waste of time unless your doing it with a sniper rifle and even then you have to wait for the right time. The dishonest anti-war left doesn't have as much shit to do.

  • ||

    Please be there in New York on May 14, 2010 . Lets start the process of "taking America back".

    http://atlah.org/atlahworldwide/?p=7196

    www.TeaPartyRevolution.com
    www.TeaPartyExpress.com

  • Ganjatron||

    I love how he bloviates about how mass-casualty-causing terrorism was the exclusive province of nation-states a generation ago. Right, like Tim McVeigh, Unabomber, Eric Rudolph, Franz Fuchs, Baruch Goldstein, etc. Which nation-state was sponsoring them again?

  • Tom Blanton||

    It seems as if Eli Lake is saying that it's OK if an Imperial President assumes the role of Imperial Dictator as long as we pretend it is a temporary thing.

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  • ปลวก||

    but they've got neoconservative supreme Eli Lake writing about foreign policy.

  • RAN||

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