Balkinization  

Monday, December 07, 2009

Notes on our constitutional dictatorship (continued, sadly)

Sandy Levinson

Tomorrow's NYTimes apparently will have as its lead story "Administration Presses Pakistan to Fight Taliban," which begins as follows:

"The Obama administration is turning up the pressure on Pakistan to fight the Taliban inside its borders, warning that if it does not act more aggressively the United States will use considerably more force on the Pakistani side of the border to shut down Taliban attacks on American forces in Afghanistan, American and Pakistani officials said."

Perhaps I'm missing the point, but this distinctly sounds like the threat of a unilateral declaration of war against Pakistan, "unilateral" because there is, of course, not the slightest hint that the Administration will go to Congress for a declaration of war against our putative ally, Pakistan. What this also reminds me of is the Nixon Administration's rationale for taking the Vietnam War into Laos and Cambodia, because they were being used as bases for attacks on US forces in Vietnam. This continues a pattern of presidential unilateralism begun by Harry Truman in 1950 and carried to most recent excess by George W. Bush.

I wonder, also, if we are seeing the beginning of a "credibility gap," particularly as regards the terms of our involvement and the phantasmic "withdrawal date(s)" that are now being bruited about. We are still living with the consequences of developing during the Vietnam Era a corrosive cynicism about whatever "our" government told us about the most fundamental issues of war and peace, life and death. Why, exactly, should we believe what we're being told, given that the premises of the articulated policies are incoherent and/or rest on an extraordinary degree of magical thinking, such as the relevance of the COIN manual to Afghanistan, the second-most corrupt country on the face of the earth that has never, apparently, had a strong central government in its centuries-long history, for starters. And, according to tomorrow's Times story, “'We concluded early on that whatever you do with Pakistan, you don’t want to talk about it much,' one of the president’s senior aides said last week. 'All it does is get backs up in Islamabad.'” Presumably it really doesn't matter what the American people know (or think) about such things, save that the Administration will presumably ratchet up the argument that we "must" move the war into Pakistan in order to protect Ameicans at home. "The implicit threat of not only ratcheting up the drone strikes but also launching more covert American ground raids would mark a substantial escalation of the administration’s counterterrorism campaign." What will happen if the Taliban retaliates by increasing terror bombings in Pakistan and destabilizing control of Pakistan's nuclear arsenal. Will we be sending in troops (with India?) to gain control of that arsenal, which is even more important than the Iraqi oil fields?

I still feel it necessary to say that I am pleased that Obama is President instead of either Clinton or McCain; I admire the demeanor described in the NYTimes story about the many deliberations leading up to the "surge." And I was reinforced in my suspicions last year about Hillary Clinton, who would apparently have gladly sent the full complement of 40,000 troops to Afghanistan. But I increasingly have a sickening feeling that he is almost willfully destroying the hopes that so many of us had that he would in fact bring us change we could believe in.

This is truly an ominous moment in American politics.


Comments:

Sandy:

We declare war against people, not territory. Congress declared war against al Qaeda and its allies including the Taliban with the 2001 AUMF. We do no need a declaration of war against Pakistan to attack the Taliban in Pakistani territory.

Congress' declaration of war against the Germans granted FDR the power to attack German combatants where ever they may be found. Congress did not need to declare war against every country the Germans occupied before they could be attacked in these countries.

The fact that Barack Obama declined retreat in defeat from Afghanistan may be a personal disappointment to you as an Obama voter, but it does not constitute a constitutional dictatorship.
 

We declare war against people, not territory.

What a load of steaming BS that is. Wars are ALWAYS about territory, and they are ALWAYS fought by people. Your silly false distinction only shows, once again,
how little you actually understand what issues from your lying mouth.

Mostly, you just enjoy seeing people. The costs and consequences never matter -- wallowing in blood and bigotry is the attraction.
 

"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."

Pakistan harbored and is harboring Taliban and al Qaeda who were responsible for 9/11. Pakistani officers where part of the command structure of the Taliban army on 9/11 (according to Jane's), and the ISI always provided essential support.

From the beginning the language of the AUMF authorized attacks on Pakistan, but the Pakistani government switched sides immediately, allowed the US overflight rights, and is now finally using troops against the Taliban. So US actions in Pakistan have been covert rather explicit.

The AUMF authorizes "necessary and appropriate force" at the discretion of the President. In Afghanistan, this has taken the form of an overt war. In Pakistan, it has taken a different form. Should the President exercise the authority given him by Congress to change the nature of our use of force in Pakistan, that is clearly within the AUMF as drafted.
 

I don’t know that the legality of our military operations in Pakistan is quite as clear cut as suggested by Bart and Howard Gilbert, but it certainly must be true that the legal issue is the same as it was 6 months or 6 years ago. If what we have been doing is legal, then it would seem that what we are threatening to do would also be legal. And even if what we are threatening to do would be illegal, it is the doing and not the threatening that would be illegal.

Put another way, the fact that Professor Levinson thinks that expanding military operations in Pakistan is a really, really bad idea has no bearing on any legal analysis. Does it?
 

Charles Gittings and others think the AUMF is unconstitutional, which can be reasonably argued, but I'm unsure how Obama's comments violate the AUMF.

OTOH, one problem for some is that the AUMF allows the state of affairs Prof. Levinson so fears. On that front, perhaps Congress is the right place to focus our criticism on here.

As to Obama, people elected him for various reasons. Even if he was exactly the same as the two likely alternatives on foreign policy, and he surely was not regarding at least one,* all the other reasons made him a "change we can believe in."

---

* Clinton's vote on the Iraq War damned her on this front even if on everything else there would not have been a difference ... hard to tell and she is after all Secretary of State. Elections have consequences, including punishing people for moves like that, to the degree (as those who voted against her nomination often did) you think it is deserved.
 

Obama stated during the campaign that he would go into Pakistan without an invitation from the Pakistanis, so this isn't new. It is, however, surprising, since it is so undiplomatic and impolitic. How can Pakistanis be other than offended by this? How can this do other than hurt our relations with them? And what is the rest of the world to think? After he tours the world ostentatiously treating other countries as equals, all of a sudden he tries to out-Bush Bush -- adn succeeds.
 

"out-Bush Bush"

really now? How quickly we forget.
 

Charles:

As a candidate, Obama expressly told you that he would escalate the Afghanistan War if you voted for him. You enthusiastically voted for Obama. Did you think Obama was lying? Elections have consequences and you only have yourself to blame for electing Obama.
 

The expression "war" is a term of art. It has a meaning in international law and it may only exist between sovereign states. Your Congress did, albeit belatedly, declare war on Japan, Germany and the other Axis states in 1941 and that state of war came to an end on VE Day (8th May 1945) as regards the war in Europe and VJ Day (15th August 1945).

It is incorrect to say that there is presently a "war" in Iraq, or in Afghanistan, or in Pakistan. The expression "war on terrorism" is political hyperbole - just like the "war on drugs" and it is regrettable that the Administration, the newspapers and many others who ought to know better continue to speak of the military operations in Afghanistan, Iraq and Pakistan as being "wars" while the USA and its allies maintain diplomatic relations with all three states. Neither the USA nor the UK are at war, but are involved in the messy process of reconstruction of Afghanistan and Pakistan as minimally functioning states.

We should perhaps remember that the present US Administration is very much a prisoner of decisions taken by previous administrations (and the Congress) in relation to all three countries.

There is already much of interest in the record of the proceedings in the UK of The Iraq Inquiry. As readers may be aware, this is not a proper enquiry under our tribunals legislation (where the proceedings would be presided over by a senior Judge sitting with expert assessors armed with powers to require documents and evidence), but an "ad hoc" non statutory enquiry where the panel was hand picked by the Prime Minister's office. Nevertheless, there is a great of evidence being taken at this early stage from the key civilian and military officials in the various UK ministries involved in the Bush-Blair "Enterprise of Iraq"..

What is relevant for present purposes is that the evidence thus far given is quite revealing about the lack of coherent planning for the post conflict situation in Iraq largely because the political
mantra of the Bush Pentagon was that it was unnecessary to go into any detail: the troops would be welcomed as liberators, democracy would break out as if by magic, and a civil administration would spontaneously arise phoenix like from the ashes of the Saddam régime. Looking back now, one can see that this was wishful thinking which had appalling consequences. Very much the same insouciance undoubtedly accompanied the invasion of Afghanistan.

In effect, therefore the Obama Administration has been forced to pick up the fragmented pieces in the pottery barn which were broken, not on this Administration's watch but on that of previous administrations - in the case of Afghanistan going back to the latter days of the Carter Administration and more importantly to the lunacy of the Reagan proxy war with the Soviet
Union with the Mujahidin as US proxies. Putting Afghanistan (and Pakistan for that matter) back together as functioning states was never going to be simple and it has been made much, much worse during the last eight years.

So like Professor Levinson, I am very, very reassured by the account given in the NYT story of how the President reached his decision - and even more so by the ample evidence that this was also a policy quite carefully co-ordinated with other countries with a stake in the outcome.
 

When did the first world "war" between Germany and the U.S. end? When a peace treaty was signed or on 11/11/18? Also, wasn't 9/2/45 the official "VJ" day? Anyway, per U.S. law, a state of "war" continued on in various respects.

Also, what is the status of those detained as "enemy belligerents" or whatever word the Obama Administration is using these days if there is no 'war' as such? He after all relies in part on the "law of war," including its international aspects.
 

If the story on the US sending troops into Pakistan is true, it is nothing but sheer arrogance and stupidity.

Think of it beyond the jingoism that characterizes most of the analysis out of the US - the issue is that the US offensive in Afghanistan may fail if the Taliban are able to retreat into FATA in Pakistan. Well then, if Pakistan is uncooperative, how on earth does the US offensive into FATA do anything other than push the Taliban deeper into Pakistan into new safe havens and further destabilize Pakistan and push even more people into supporting the Taliban and undermine the Pakistani government and possibly push for an overthrow of that government by extremist elements.

Once you get beyond the braggadocio of it all, the US threat is that we will cut off our nose to spite Pakistan if they do not cooperate, since unilateral US action in Pakistan will only destabilize the region further, and therefore move the US goals even further out of reach.

The key to getting Pakistani support remains understanding what exactly Pakistan would need to do to tackle the Afghan Taliban threat and what constrains it from doing so. What Pakistan needs to do to tackle the Afghan Taliban threat is put tens of thousands of more troops into North Waziristan and elsewhere in FATA. Pakistan already has 30,000+ troops in South Waziristan, another 30,000 in Swat, and tens of thousands elsewhere in FATA. The tens of thousands needed for attacking the Haqqani network in NW would be in addition to the ones mentioned above.

Now, what constrains Pakistan from doing so? Aside from the belief that the US will eventually 'cut and run' and abandon the region once again leaving Pakistan with an enemy in the Taliban that will likely overrun large parts of Afghanistan and then focus on Pakistan, the troops required need to be moved from the Eastern border with India, where the Indian COAS made a statement just days ago that the Indian military saw a possibility for 'limited War' in the Indo-Pak context despite nuclear weapons.

That is a very serious concern from the Pakistani perspective. Moving troops from the Eastern border can only be done then if the US can either provide guarantees that it will militarily and economically deter Indian from attacking Pakistan while it is engaged in the West, or if the US can bolster Pakistan's conventional military capability enough for Pakistan to feel comfortable relocating military assets from the East to the West.

At the end of the day, the Pakistani Military can reclaim territory lost to the Taliban, it will likely not be able to reclaim territory lost to the Indian military if they attack while Pakistan is busy in the West.

The policy outlined publicly by administration officials offering a strategic partnership and accelerated military support (which needs to go beyond just COIN support) IMO remains the only viable means of getting the Pak Military to shift assets from the Eastern front to the Western front.
 

Joe:-

A war ends when the other belligerent state and its armies surrender. There may then be a period of occupation (as was the case for both Germany and Japan at the end of WW2) during which time the law of military occupation applies. Normal relations between the former belligerents are restored when peace treaties are signed and ambassadors are exchanged. Thus there was an Armistice in the 1st World War which came into effect on the 11th hour of the 11th day of the 11th month in 1918 at which point hostilities ended - the Peace Treaty (Versailles) did not come until quite some time later.

The Potsdam conference of 1945 regulated the military occupation of pre-war Germany and established the Allied Control Council as the theoretical occupation authority. It was not until 1949 that a civilian government was established in the former American, British and French zones and this government was not recognised as fully sovereign until 1955.

Former POWS remained in allied military custody for quite some time post war. In the UK there were 400,000 POWs in the UK at the end of 1946 - still in their camps and mostly working on farms. By the end of 1947, about 250,000 POWs had been repatriated and the last of those who opted for repatriation did not leave until November 1948. Some 24,000 POW's elected to stay.

One of the most famous was Bert Trautmann a great goalkeeper for Manchester City who is one of the select few inducted into the English National Football Museum Hall of Fame.
 

On the issue of Pakistan, I share the concern of Professor Levinson and others about Pakistan.

I refer to my comments on Pakistan following Professor Tamanaha's 7 Oct 2009 post: While the Obama Administration Decides What to Do About Afghanistan...

Look at how the principal Pakistani English language daily is playing this:

Monday's lead was: Bombings, drone attacks fuel anti-US sentiment in Pakistan ;

Today's lead is: US prepared to give Pakistan more help: Gates;

In this internet age, it behoves Administration officials and others to be very careful what they say and do. The present Pakistan government represents the best hope for Pakistan since Zia-ul Haq's dictatorship, but the ability of the Administration to move as fast as the Administration would like is questionable. It is but barely in control in the FATA and drone strikes fuel deep resentment. In the more dangerous madrassas and elsewhere they are probably the best recruitment tool for extremists since the Soviet invasion of Afghanistan.
 

The Obama-Nixon parallel is certainly becoming more interesting. I expect to see this extended into the 2012 reelection campaign, where the "silent majority" of Obama supporters are contrasted with the "extremist" protesters on the right and (increasingly) left. Obama wanted to be like one Republican (Lincoln); he may have picked the wrong one.
 

No I didn't think Obama was lying, but there was no way to foresee that he would make a catastrophic mistake like keeping Gates on at DoD. They really out-thought themselves on that one, and they'll pay for it until they get wise and dump him.

I understand their reasons for keeping him, but I also understand that it was mistake nevertheless.

I might actually support an escalation if I thought it had a reasonable chance of accomplishing something worthwhile, but hitting the reset button for another spin through DoD's idiotic video game will only waste more time, money, and lives accomplishing nothing at all. When the objectives are imaginary and false, there's nothing for you to win.
 

Correction:-

In my previous post for: "the ability of the Administration to move as fast as the Administration would like is questionable" please read:-

"the ability of the [Pakistani] government to move as fas as the [US] Administration would like is questionable".

Here is an interesting comment on the NTY and WAPO stories Obama's Afghanistan Decision and the Art of the Tick-Tock.
 

Perhaps I'm missing the point, but this distinctly sounds like the threat of a unilateral declaration of war against Pakistan

Well, shit: I agree with Bart. (And with Howard.)

Congress authorized force vs. the Taliban & al-Qaeda. (AUMF.) No geographical limit.

Pakistan claims sovereignty over its NW Province but doesn't exercise it, and Taliban/Qaeda forces lodge there.

Pakistan cannot have its cake and eat it too. If it controls its territory, then it needs to assist its putative ally (us). If it doesn't, then it needs to shut up, sit down, and let someone else hunt the enemy.

... Whether such a military strategy is *politically* desirable is a matter of policy.
 

As applied to the current conflict at hand, what would international law say about Obama's plans to continue to detain a certain class of what were formerly known as 'enemy combatants' indefinitely, resting his power in part on the 'laws of war.'

AUMF was not styled as a "war," a word that is loosely used even by top officials, and has for some time (talk of a "state of war" existing long after formal surrender). The legal use of the word could be different, as noted.
 

A major fear with the US pulling out of Vietnam was the domino theory. Perhaps Obama's Af/Pak decisions to up the ante may result in dominoes falling.
 

What a load of steaming BS that is. Wars are ALWAYS about territory, and they are ALWAYS fought by people. Your silly false distinction only shows, once again, how little you actually understand what issues from your lying mouth.

Think first. Post second. Knee-jerk third. Bart's comments are entirely correct. Whether wars are "about territory" -- whatever that means -- isn't at issue. What is at issue is where we can fight a war. When Congress authorizes the U.S. to go to war, it does not declare the geographic scope of the war, but rather the enemy. Congress declared war against specific Axis countries. We fought those Axis countries, however, wherever their forces were to be found. We did not need special authorization to fight German troops in Belgium or Japanese troops in the Dutch East Indies. Why? Because we were fighting Germany and Japan, as authorized.

Similarly, the military has been authorized to fight Al Qaeda. The authorization does not specify that the U.S. may fight them only in Afghanistan.
 

The question here isn't whether or not we can use force lawfully. We're the strongest nation ever, and we can project force anywhere we want to as long as we are willing to accept the consequences.

War was outlawed by the Kellogg-Briand pact during the Hoover administration, but in Afghanistan we still have a colorable claim to be acting in self-defense; though eights years of war crimes, ineptitude, and failure have left that claim very pale indeed.

But that isn't any question at all unless and until you can first state a set of coherent objectives, develop a plan with a reasonable chance of success, and persuade yourself that the potential gains are worth the risks.

The problem in Afghanistan is that the objectives are figments grounded in domestic political narratives, wherein 'winning' means fighting a war, and ending one means "losing", by definition.

The people who support these wars mostly seem to think that war is just a good idea in much the way farms or freeways are. They look back at the preposterous record of failure and falsehoods over the last eight years and count it a great success just because we're
still "winning" and we can't afford to "lose".
 

David,

Are you saying you don't understand the word 'territory'?

I mean war is about territory in the same sense economics is about money.
 

Mourad:

A war is a military operation against an enemy, regardless of whether the enemy is a sovereign state. Much of the law of war is dedicated to recognizing non-governmental partisans as legitimate wartime combatants and protecting them against prosecution as civilian criminals. Why do you keep insisting that wars against non-governmental militaries are not wars under international law?

Mohammed said...If the story on the US sending troops into Pakistan is true, it is nothing but sheer arrogance and stupidity.

We already have CIA and special ops troops in Afghanistan. Who do you think identifies and lases the targets which these drones are launching missiles against? The alleged treat was to increase our current presence.
 

Anderson wrote:-

"Congress authorized force vs. the Taliban & al-Qaeda. (AUMF.) No geographical limit. Pakistan claims sovereignty over its NW Province but doesn't exercise it, and Taliban/Qaeda forces lodge there. Pakistan cannot have its cake and eat it too. If it controls its territory, then it needs to assist its putative ally (us). If it doesn't, then it needs to shut up, sit down, and let
someone else hunt the enemy."


As I understand it, the US Constitution allocates the power to declare war to the congress and I understand that accordingly a US president may not lawfully engage in a war against other sovereign states without congressional authority. Leaving aside the issue that the procedure under which the Congress passed the AUMF is only presumptively constitutional (presidents of both parties have reserved their position on the constitutionality of the underlying legislation), international law does not concern itself with the internal procedures of states.

So far as the UK is concerned, our constitutional settlement is that the power to make war is a Royal prerogative exercised by the Crown on the advice of ministers (who are answerable to parliament for that advice) - but therefore no prior resolution of the parliament is constitutionally required before war is declared - and in fact there was none before the UK declared war on Germany in 1939.

Pakistan is a friendly sovereign state with which the USA maintains diplomatic relations and the USA has not declared war against Pakistan, nor could it lawfully do so as a matter of international law by virtue of the provisions of the UN Charter. Therefore, incursions of troops, or overflights of drones, or the firing of artillery, or the clandestine operations of the CIA within Pakistani sovereign territory are all violations of Pakistani sovereignty and unlawful in international law if carried out without the consent of the Government of Pakistan or the authority of the United Nations Security Council.

Further, if "might makes right" then it would of course follow that Russia was perfectly entitled to interfere in the internal affairs of Georgia quite recently.

Now as it happens, I watched the Senate testimony of General McChrystal and Ambassador Eikenberry before the US Senate on CNN last night and the General testified as to the meetings he and his staff had with their opposite numbers in Pakistan on a regular basis and to the establishment of joint border control operations. There is every reason to suppose that there is approval and/or acquiescence by the Government of Pakistan in relation to the US incursions into and over Pakistani territory. If the Government of Pakistan chooses that course, that it its sovereign prerogative. Both governments have an interest in defeating Al Quaeda and the Taliban - indeed, more so Pakistan than the USA since for Pakistan the issue is the very survival of the nation as a democratic state while US survival as a democracy is not in peril - at least not from al Quaeda.

With respect, your language is singularly inappropriate if you consider the extent to which the USA contributed to the nourishment and establishment of Al Quaeda and other armed salafist infrastructure in the Pakistan FATA territories during Reagan's proxy war with the Soviets in Afghanistan, compounded by the Bush Administration's support of the Musharraf dictatorship.

Having thereby put the survival of an ally at risk, the USA now has at least a moral obligation to assist the democratic government of Pakistan to re-establish law, order and good governance in that country.

Excessive use of drones for purposes other than surveillance may be inimical to that objective. But thankfully the Obama Administration may be more sensitive to such matters than its predecessor.
 

"The Mouse That Roared" starring Peter Sellers was a funny movie. What's not funny, however, are the many variations on "The Mouse That Roared" since then, including currently Afghanistan and Pakistan. There are other nation-states (failing or failed) out there just waiting to get in line with yet another variation on the theme. No, these variations are not funny as more and more people get killed and injured, with the military-industrial complex ready to cash in.
 

Bart wrote:-

"A war is a military operation against an enemy, regardless of whether the enemy is a sovereign state. Much of the law of war is dedicated to recognizing non-governmental partisans as legitimate wartime combatants and protecting them against prosecution as civilian criminals. Why do you keep insisting that wars against non-governmental militaries are not wars under international law?"

The importance of understanding what type of military intervention constitutes a war and what does not is really quite important.

Take for example the case of hypothetical State "A" which has a legitimate democratic government and, being a peaceful country, with only a small military capability. A gang of criminals combines with some venal officers to foment a coup with the aim of overthrowing the legitimate government, installing a military government and then granting an excusive concession to exploit some valuable natural resources to the profit of the criminals and to the detriment of the people. The lawful government of State A asks State B to provide military assistance to defeat the insurrection which State B agrees to do. Is that a war? Of course not. State B is not at war and nor is State A. The armed hostilities are military action in aid of the lawful civil power - what is known in common military parlance as "a police action". If captured, will the coup leaders be entitled to be treated as prisoners of war, lawful combatants who are not liable to be tried for the death and destruction they have wrought? Of course not. They will be liable to be tried before the ordinary criminal jurisdictions of State A for treason, rebellion, homicide, criminal conspiracy, etc.

The so-called "global war on terrorism" was a legal nonsense. Terrorists ought not to be legitimised and dignified by equating them with the soldiers of a regular army obeying the legitimate orders of their military superiors, or partisans who flock to volunteer for the cause of their country. Terrorists are common criminals and those who conspire to instigate terrorist acts likewise. They are to be apprehended and prosecuted as such in the ordinary criminal courts, given due process and condign punishment.
 

Similarly, the military has been authorized to fight Al Qaeda. The authorization does not specify that the U.S. may fight them only in Afghanistan.
# posted by David Nieporent : 4:52 PM

Does anyone have an estimate (guess) about
how many members of al Qaeda there are left
worldwide?
 

As I understand it, the US Constitution allocates the power to declare war to the congress and I understand that accordingly a US president may not lawfully engage in a war against other sovereign states without congressional authority.

The "accordingly" part is not in the Constitution. If the president exceeds the scope of the AUMF, which arguably he hasn't, then impeachment is really the only remedy.

Your point on int'l law is better taken, I think. But again, the practical issue is that Pakistan is not going to declare that the U.S. has invaded it, and without such a declaration, no third power is going to go to war to assist Pakistan.

Even in the event of such a declaration, third-power assistance is unlikely -- who wants to declare war on the U.S.?

Pakistan's problem is of course India. Pakistan cannot afford to alienate the U.S. and risk our throwing our weight 100% behind India (giving it the carte blanche we seem to give to Israel for instance).
 

The book version of "The Mouse That Roared" (and its sequel) beats the movie. As to Mourad's police action hypos, comparisons to our Civil War (I'd reckon he would say "both of them") might be interesting. As to Obama and drones, Democracy Now! had a special UN official recently on the matter on recently, and the optimism might be a bit excessive. Overall, given M's preference that the U.S. military step aside for international forces, Obama's plan would seem to be not quite up his alley.
 

Anderson says:

" ... the practical issue is that Pakistan is not going to declare that the U.S. has invaded it, ...."

But what might be the political implications for Pakistan if the drones, etc, are preceived in Pakistan as an assault upon its sovereignty? Might there result internal political problems with perhaps a return to military control? There are a lot of potential dominoes in Central Asia, India and southeast Asia, not to mention the traditional Middle East, that might topple.
 

Mourad said...

Bart wrote:- "A war is a military operation against an enemy, regardless of whether the enemy is a sovereign state. Much of the law of war is dedicated to recognizing non-governmental partisans as legitimate wartime combatants and protecting them against prosecution as civilian criminals. Why do you keep insisting that wars against non-governmental militaries are not wars under international law?"

The importance of understanding what type of military intervention constitutes a war and what does not is really quite important.

Take for example the case of hypothetical State "A" which has a legitimate democratic government and, being a peaceful country, with only a small military capability. A gang of criminals combines with some venal officers to foment a coup with the aim of overthrowing the legitimate government, installing a military government and then granting an excusive concession to exploit some valuable natural resources to the profit of the criminals and to the detriment of the people. The lawful government of State A asks State B to provide military assistance to defeat the insurrection which State B agrees to do. Is that a war? Of course not. State B is not at war and nor is State A. The armed hostilities are military action in aid of the lawful civil power - what is known in common military parlance as "a police action". If captured, will the coup leaders be entitled to be treated as prisoners of war, lawful combatants who are not liable to be tried for the death and destruction they have wrought? Of course not. They will be liable to be tried before the ordinary criminal jurisdictions of State A for treason, rebellion, homicide, criminal conspiracy, etc.


1) The GCs do not recognize "police actions". That was a marketing term used by Truman to avoid going to Congress for a declaration of war in Korea. However, the GCs were applied to the Korean "police action" as they were to all other wars.

2) As to your hypothetical, States A and B are most certainly engaged in a war with the non-governmental insurrectionist military. For military actions committed under the law of war, the GCs would treat the uniformed insurrectionists as POWs with all the accorded protections.

3) The insurrectionists can be tried for war crimes and treason under the GCs even though they are wartime POWs.

Terrorists ought not to be legitimised and dignified by equating them with the soldiers of a regular army obeying the legitimate orders of their military superiors, or partisans who flock to volunteer for the cause of their country.

So long as "terrorists" fall under the GC definition of privileged POWs, then they have all the same rights as a uniformed soldier. To the extent that "terrorists" violate the GCs and the law of war, then they are not-privileged POWs, but still enjoy the minimum default protections granted to any military capture. Merely because terrorists do not follow the GCs and are not entitled to privileged POW status does not mean they are not at war. (See the Apache, Moros, Viet Cong and now al Qaeda and the Taliban.
 

The Geneva Conventions don't care about treason at all. They do care about fair trials however.

And EVERYONE is protected by Geneva regardless of any alleged crimes. If you aren't protected by Geneva III POWs, you're protected by Geneva IV Civilians. If Bart was right, no one in the US military would qualify as a POW because the US has been committing war crimes by policy for eight years. Congress has passed three acts that were clearly intended to aid and abet those crimes.

The criteria originated in Hague II 1899 when wars were still being fought against "godless savages" etc, and they really need to be modernized to eliminate the endless dodges and evasions of folks like Bart. The whole issue is really beside the point, for the simple reason that POW status doesn't protect anyone from prosecution for a war crime any more than sovereign immunity does, which is not at all. See IMT arts. 6-8.
 

But what might be the political implications for Pakistan if the drones, etc, are preceived in Pakistan as an assault upon its sovereignty? Might there result internal political problems with perhaps a return to military control?

I think that's a genuine *policy* concern. However:

1. If the civilian leadership is fearful of a coup on the basis you suggest, then it strongly behooves them to insist that the U.S. *is* acting consonant with Pakistan's sovereignty and wishes. The gov't should quietly suggest to the media that, if the Americans want to get killed chasing Taliban and terrorists, that is much better than Pakistanis getting killed.

2. "Collateral damage" is a problem with that scenario, but the U.S. should be striving to minimize that anyway, and "happily" the terrorists seem to blow up as many innocent Pakistanis as we do.

3. If the military does take over, that changes little from the U.S. perspective -- we may even prefer dealing with them (as we seem to have w/ Musharraf). India is their #1 concern. It's a problem that ISI continues to support the Taliban, but that's a problem in all scenarios.

4. The greater fear, presumably, is a "military" coup that's really an Islamist coup. One has to suppose that Obama thinks that unlikely. Moreover, mullahs running Pakistan still have India to worry about.
 

"...if the president exceeds the scope of the AUMF..."

Gee Anderson, I'd be interested to hear how you think that would even be possible. As written, it literally authorizes the President to launch a military attack against any nation, person, or group, including the United States. The stated purpose of 'preventing any future act of terrorism' can literally only be accomplished by exterminating the entire human race.

The thing is not only unconstitutional, it's hysterical to the extent of idiocy --- just one more example of David Addington's fraudulent neo-fascist goo.
 

Congress (with a single nay) passed the AUMF, so it has the ultimate responsibility here.

That 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.

This doesn't seem to cover all people on Earth. The term "necessary and appropriate force" is vague, but seems to have various limitations in practice. That is, a drone attack on Mexico tomorrow doesn't seem to cut it. A certain category of terrorist and their enablers is involved.

Finally, the use of the past tense is interesting. In the Hamdan ruling, the Court rejected alleged "war crimes" that occurred before 9/11 (making the planning military commission of the attack on the USS Cole questionable).

What if a new country, let's say Nepal, who didn't "harbor" Al Qaeda before 9/11 does so in the future. Would the AUMF authorize bombing Nepal if it starts to harbor them in the future?

If the AUMF really has no limit (Pakistan seems a much easier case to make) in this respect, it truly is problematic.
 

Gee Anderson, I'd be interested to hear how you think [exceeding the scope of the AUMF] would even be possible. As written, it literally authorizes the President to launch a military attack against any nation, person, or group, including the United States. The stated purpose of 'preventing any future act of terrorism' can literally only be accomplished by exterminating the entire human race.

The thing is not only unconstitutional, it's hysterical to the extent of idiocy --- just one more example of David Addington's fraudulent neo-fascist goo.


Aside from your complete misreading of what it says, and the fact that you think David Addington, rather than Congress, passed it, what about it is "unconstitutional"?
 

Joe,

It doesn't seem that way because you're are being a little naive reading the window dressing "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".

So the President has his secretary type up a memo stating "I have determined that ____________ planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

Then he fills in a name, signs it, and calls DoD to get the ball rolling on anything from an individual assassination to a nuclear strike. Notice how the carefully crafted review process of the AUMF insures that there is no possibility anyone might interfere with or overrule the President's decision.

To answer your question about Nepal, the AUMF authorizes the President to nuke Nepal, Paris France, or St. Louis MO just as soon as he signs the "determination".

The mandate to exterminate the human race is the language "...prevent any future acts of terrorism...". Murder has been punishable as a crime since ancient times, yet there are more murders today than ever. The laws are thought to deter some (not 'any'), and give us a way to minimize the chances of a convicted murderer getting an opportunity to re-offend, but nobody in their right mind is under any illusion that any law could prevent any future murder.

My claim is simply that if the purpose of the AUMF is to "prevent any future acts of terrorism," that exterminating the entire human population would in fact accomplish that purpose, there is nothing in the AUMF that would prevent doing so, and I'm unaware of any other strategy that could succeed.

The President could take a more reasonable approach and just exterminate all Muslims, but the whole point here is that there isn't any part of the AUMF that is even arguably reasonable. It's one of the most irresponsible acts the Congress ever passed, it's clearly unconstitutional, and according to Addington and Yoo, it's also utterly unnecessary, because the President already has unlimited powers as C-in-C. They just wanted a statute to rubber-stamp their fraudulent neo-fascist legal "theories".

The issue here isn't what the AUMF authorizes -- it's clearly unconstitutional and authorizes nothing, the real question is how much longer the USA will go on being this stupid. Propaganda and vacuous nonsense like the AUMF is not substitute for sound reasoning.
 

Bart asserted:-

"As to your hypothetical, States A and B are most certainly engaged in a war with the non-governmental insurrectionist military. For military actions committed under the law of war, the GCs would treat the uniformed insurrectionists as POWs with all the accorded protections."

It must be some time since Bart has actually read the Geneva Conventions. The Conventions draw a distinction between "international armed conflicts" which attract the full protections of the Conventions and "non-international armed conflicts".

Non-international armed conflicts are those restricted to the territory of a single state, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. [i.e. the case of State A in my hypothetical].

A more limited range of rules apply to internal armed conflicts and are laid down in Common Article 3 to the four Geneva Conventions as well as in Additional Protocol II - which the USA, Israel, Iran, Pakistan and Afghanistan and Iraq have not ratified [ good company the USA keeps].

Common Article 3 provides only for the humane treatment which any civilised state ought to give to any prisoner:-

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for."


The POW provisions of the Geneva Conventions do not apply to non-international armed conflicts. Thus, dear Bart's assertion that POW status should be given to insurrectionists in a single-state conflict is purely and simply wrong.

So, were Bart to engage in an armed insurrection against the Obama Administration, whether in uniform or not, the Government would have no need to accord him or his accomplices POW status - merely humane treatment and a fair trial.

And given what is now known about the US treatment of detainees in its custody, Bart might do well not to place too much reliance on the "humane treatment" obligation.
 

against those nations, organizations, or persons

That's the key language, and not even the scary language.

(The scary language is "he determines" -- a decision apparently reviewable only by impeachment.)

The only entities I'm aware of as qualifying as "determined" are the Taliban and al-Qaeda (and their member "persons"). The president can use force against them.

As Joe notes, the AUMF does not extend to future acts of aiding or harboring those entities.

There's not much danger of our getting into war with a sovereign state, because any state with real sovereignty over a region occupied by Taliban or Qaeda would presumably kill them or capture them and extradite them to us.
 

The issue here isn't what the AUMF authorizes -- it's clearly unconstitutional

It's a little odd, then, that someone like Yaser Hamdi, who had a great deal more riding on that question than Mr. Gittings would appear to, doesn't seem even to've made that argument, and that not even Justices Souter and Ginsburg (who concurred in part w/ separate opinion) seem to have noticed that "clear" fact.
 

Btw, if you want to see someone whose meltdown makes Prof. Levinson look calm, try Garry Wills at the NYRB. "Afghanistan - The Betrayal."

I feel betrayed, or disappointed, by Obama on several issues -- torture, Gitmo, Bagram -- but it had not occurred to me that his prosecuting a war he had promised to wage more heavily was any sort of "betrayal."

But Prof. Wills's vocabulary surely exceeds my own, and perhaps he has in mind some obscure sense of the word that makes it other than hyperbolic bleating.
 

What exactly am I misreading??

It's unconstitutional because:

1) It is an impermissible delegation of the authority of Congress to declare war in Art. I § 8, cl.11.

2) To the extent it is applied to an individual or group, it functions in effect as a Bill of Attainder, which is prohibited by Art. I § 9, cl.3.
 

Let's factor in Bush/Cheney anticipatory self defense to the proposed Pakistan border actions. Might Pakistan then assert its right of anticipatory self defense with respect to its Afghanistan border? Sauce for the gander?
 

Aren't Bill of Attainders in effect punitive acts without due process of law?

If so, to the extent AUMF isn't (1) penal or (2) requires (judicially reviewable) process, I'm not sure about that. Japanese Internment, which didn't separate the wheat from the chaff, was a Bill of Attainder. This, less so. The fact it might be currently being carried out w/o proper process doesn't mean it is inherently bad. [See, e.g., the contrasting opinions on AUMF in Hamdi].

As to the power of the President, that is scary, especially given Congress' failure to check it by the myriad of ways it can (see again, Marty Lederman and David Barron's two law review articles on commander-in-chief power).

But, then again is not the c-i-c power in the course of force inherently scary, even when not in lousy hands?
 

I keep waiting for the "AUMF not a declaration of war!!!" folks to cite me a case or other authority demonstrating that an AUMF is *not* functionally and constitutionally equivalent to a declaration of war.

Perhaps this thread will be my lucky one!
 

Anderson,

"As Joe notes, the AUMF does not extend to future acts of aiding or harboring those entities."

On the contrary, it extends to anything "necessary and appropriate" to prevent "any future act of terrorism," which could be just about anything at all, not that the AUMF gives anyone the authority to review or overrule the President's decisions about such things.

It's a little odd, then, that someone like Yaser Hamdi, who had a great deal more riding on that question than Mr. Gittings would appear to, doesn't seem even to've made that argument, and that not even Justices Souter and Ginsburg (who concurred in part w/ separate opinion) seem to have noticed that "clear" fact.

Well it wouldn't exactly be the first time Congress passed a bill without anybody bothering to think very hard about the language, or that they exceeded their authority in the press of events and political hysterics; but I don't see you pointing out where anything is UNclear about it either.

As for Mr. Hamdi, he was lucky enough to draw a couple of very good federal public defenders who set out to spring him in 2002, and got the job done in 2004 by beating Ted Olsen in a Supreme Court case. That doesn't suggest their legal strategy was weak.

I didn't even think about the Constitutional status of the AUMF until the government tried to construe it as authority to continue holding detainees they had already cleared for release. It was one of those AHA moments. The reason it figured in Hamdi was that Justice O'Connor relied on it. IMO, she didn't need it, and the AUMF could not possibly authorize what she claimed it did authorize. But she had her reasons, which were mostly to avoid the can of worms she'd have unravel if she didn't rely on it. That's my guess anyway, but I really don't want to discuss it much beyond that.
 

This comment has been removed by the author.
 

Mourad, is it your position that the AUMF would be constitutional if it were titled "DECLARATION OF WAR"?

Or is the objection that it does not specify any particular nation?

Or have I failed to understand the objection?

RSVP - thanks!
 

David Nierpoint wrote in response to another post (not mine) relating to the AUMF:-

"Aside from your complete misreading of what it says, and the fact that you think David Addington, rather than Congress, passed it, what about it is "unconstitutional"?

As Mr Nierpoint is surely aware, the statutory authority for the making of AMUF's is the The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) which was passed overriding the veto of President Nixon. Every President since Nixon has asserted the unconstitutionality of the Resolution. (Obama has not yet done so to my knowledge) but I recollect that when Bush Snr sought an AUMF for Desert Storm he stated that as Commander-in-Chief he did not need Congressional authorisation to use military force against Iraq and that his request for a Congressional joint resolution was merely a courtesy to Congress.

See NYT Op-Ed by former Secretaries James Baker and Warren Christopher as co-chairmen of the National War Powers Commission

When the Senate consented to the ratification of the UN Charter in 1945, and Congress approved the UN Participation Act 1945 this was on the basis that international peacekeeping operations did not infringe upon the congressional power "to declare War". The unanimous report of the Senate Foreign Relations Committee urging ratification of the Charter, quoted by the unanimous report of the House Foreign Affairs Committee on the UNPA, stated that "enforcement action" pursuant to an order of the Security Council "would not be an act of war, but would be international action for the preservation of the peace". I suggest that is a correct statement of the international law position.

By the UN Charter, wars of agression are unlawful in international law and it is no coincidence that neither the US nor the USA has made a declaration of war since 1945. But the UN Charter does not outlaw action in self-defence and that is also consistent with the US Constitution.

Article I, section 8, clause 11, of the Constitution grants to Congress the power "to declare War." The leading authorities on international law at the time of the formulation of the Constitution, Grotius, Vattel, and Burlamaqui were all of the opinion that a declaration of was a necessary formality prior to the commencement of hostilities but that there was no need to declare war in order to resist aggression by another state. That was the view of Madison because he moved an amendment to change the text to insert "declare" in lieu of "make" telling his colleagues that the change from "make" to "declare" war would leave the President "the power to repel sudden attacks," and Sherman argued that "[t]he Executive shd. Be able to repel and not to commence war." That made a lot of sense given the time it would have taken in those days to call the congress into session and it makes even more sense in the faster moving world of today. I would be loathe to see either the USA or the UK executive prohibited from taking emergency action - for example to repel an attack on our respective countries - or to rescue our nationals in danger.

So the 2001 AMUF is a document which is of doubtful validity given the probability that the statutory provision on which it depends is arguably unconstitutional.

Further, insofar as it authorises a defensive use of force it is otiose since the Executive has constitutional authority to act without any need for any congressional action.

Insofar as it purports to authorise offensive action, it is arguably unconstitutional because it does not purport to be a declaration of war under Article I, section 8, clause 11, of the Constitution and in any event action going beyond defence is unlawful in international law because contrary to the provisions of the UN Charter.
 

I keep waiting for the "AUMF not a declaration of war!!!" folks to cite me a case or other authority demonstrating that an AUMF is *not* functionally and constitutionally equivalent to a declaration of war.

Well if you mean me...

It's clearly intended to be that, but it's also unconstitutional for the reasons stated, and Congress needs no equivalent to a proper authorization for the use of force because they can pass a real one whenever they want to.

Note that I'm not worried about the war here. I think we should leave both Iraq and Afghanistan just as fast as it can be done, but because both wars are pointless and stupid, not
because the AUMF is facially unconstitutional.

I would have no problem agreeing that it manifests a clear intent to authorize a war with Afghanistan, and accordingy, did authorize such a war. But I would not agree to it authorizing anything else.
 

Mourad:

"Further, insofar as it authorises a defensive use of force it is otiose since the Executive has constitutional authority to act without any need for any congressional action."

Does the Executive have such constitutional authority to act for anticipatory self defense?
 

Anderson:-

The AMUF is clearly not a declaration of war.

Firstly it purports to encompass non-state actors within its language - "organisations", and "individuals". It is trite international law that wars can only take place between sovereigns.

Secondly, no state is named. That has been the practice of nations for centuries and, indeed the practice was to communicate the declaration by handing it to the ambassador of the country concerned, returning his passport and ordering him to quit the country. If one looks at the proceedings of the Senate and House on 8th December 1941 Yale Avalon - US Declarations of War one sees that the specific states are named.

Thirdly, it does not purport to declare war or recognise a state of war.

I leave it to US lawyers to decide precisely what, if any, effect the AUMF has as a matter of US domestic law. But as a matter of international law, I think that qua declaration of war it is so defective as to be a nullity and I tend to the view that it was quite deliberately drafted to give a veneer of legality in domestic law to actions outside the USA which were quite clearly going to be unlawful in international law.
 

it extends to anything "necessary and appropriate" to prevent "any future act of terrorism,"

That provides the reason for a specific use of force. AUMF provides a limit.

The murderer of Dr. Tiller, e.g., did not plan etc. the 9/11 attacks. Military force, thus, cannot be used to prevent future anti-abortion terrorism. It is said that the President can on his mere say-so make it so. Other federal statutes delegate. Law and practice show a restraint. If we think it does not, the problem will not be just limited to this issue by far.

Anderson points to this issue. He also wonders if the authorization is any different from a "war" as such. The War Powers Resolution does list them separately ("declared war or has enacted a specific authorization for such use of United States Armed Forces").

"War" is a matter of statutory and diplomatic concern. For instance, someone might be an "enemy alien" in a "war" and open to deportation but not so if the exact same use of force is done via the AUMF.
 

OK, arguendo, let's say the AUMF authorized the use of military force vs. non-state actors, the Taliban and al-Qaeda, but is not a declaration of war.

Then what's the problem re: drone attacks or commando raids in Pakistan? We're not purporting to be at war with Pakistan.
 

Shag from Brookline asked:-

Does the Executive have such constitutional authority to act for anticipatory self defense?

The right of self-defence has a long-standing history in international law and continues to be recognised under Article 51 of the United Nations Charter which states:-

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Note the use of the word "inherent" which very many commentators suggest is a recognition of pre-existing customary international law.

Historically, self-defence is a response by one nation to an armed attack by another. A recent example would be the Falklands War - see see K R Simmonds, ‘The struggle for the Falkland Islands’ (1983) 32 International and Comparative Law Quarterly 262; F Hassan, ‘The sovereignty dispute over the Falkland Islands’ (1982) 23 Virginia Journal of International Law 53.

There is also a right of collective self-defence where nations agree that an attack on one is to be treated as an attack on all - eg the North Atlantic Charter and so far as the incursion of the USA and allies into Afghanistan was concerned, it can be argued that this was the exercise of a right of collective self-defence - see UNSC Res 1368 (12 September 2001) and 1373 (28 September 2001) adopted in the immediate aftermath of the terrorist attacks on the United States of American which recognised the right of both individual and collective self-defence to respond to those attacks - see also the subsequent UNSC resolutions 1368 and 1373.

If by "anticipatory self-defence" you mean the so-called "Bush Doctrine" which in effect assert that a state which believes it is about to suffer an armed attack retains the right to launch a defensive military strike upon the expected aggressor state in order to thwart the attack it thinks it may suffer, in my view there is no such beast. The first use of force is prohibited by the
Article 2(4) of the UN Charter and there is no exception saying "if you think you are about to be hit you can get your blow in first".

The position taken by US Secretary Webster in "the Caroline" was "that Britain would need to show ‘a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation". Sir Robert Jennings has described the Caroline test as the "locus classicus of the law of self-defence" see ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82, 82-84.

There is some support for a doctrine of pre-emption (or interceptive defence) conditioned on evidence of the imminence of the attack. That was a tenable approach under customary international law. The issue is whether it survived the adoption of the UN Charter. The Nicaragua case and the Oil Platforms case in the ICJ suggest that the previous customary international law approach has not survived the UN Charter. I am not wholly convinced but on the whole, if there is sufficient evidence to justify pre-emption, the correct course is to seize the Security Council of an imminent threat to international peace and security.

So on balance I don't buy into the Bush Doctrine.
 

On the contrary, it extends to anything "necessary and appropriate" to prevent "any future act of terrorism," which could be just about anything at all, not that the AUMF gives anyone the authority to review or overrule the President's decisions about such things.

Your textual analysis is quite poor. You keep citing partial phrases rather than reading the actual language. The president is authorized to use 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. That's what the AUMF authorizes. The purpose of the AUMF is to "prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The purpose of a grant of power is not itself a grant of power.

And one hardly has to be a devotee of the unitary executive theory to note that the words "in chief" rather imply that nobody has "authority to review or overrule the President's decisions" in his role as "commander in chief." He can, of course, always be impeached. And funding for his decisions can always be denied.
 

As Mr Nierpoint is surely aware, the statutory authority for the making of AMUF's is the The War Powers Resolution of 1973 (50 U.S.C. 1541–1548) which was passed overriding the veto of President Nixon.

The statutory authority for the AUMF? The AUMF is its own statutory authority. While the president and the courts need statutory authority to act, Congress does not need "statutory authority" to pass a law. (It does, of course, need constitutional authoriy.)

As for your repeated citations to the UN Charter: the U.N. Charter was ratified by the U.S. Senate on July 28, 1945 (according to a quick Google). The AUMF was passed on September 18, 2001. Thus, to the extent that there is any conflict between them, the AUMF supersedes the UN Charter as a matter of U.S. law.
 

Robin Wright's "The real stakes in Afghanistan" in today's WaPo (12/10/09) makes the points i tried to make in earlier comments on this thread much more intellectually and clearly than I am capable of. (She does not use my reverse domino theory.) The tag at the end of her OpEd states she "reported on Afghanistan since the 1980s." I used to watch her on the Sunday political shows and she always impressed me as a non-pundit, that she was really sincere in what she said. However, she seemed to have dropped in her Sunday appearances during Bush/Cheney. I guess she wasn't shrill enough. She has some sobering thoughts.
 

President Obama's Nobel Peace Prize acceptance speech addresses just war, international law, and so forth.

"Even as we make difficult decisions about going to war, we must also think clearly about how we fight it. The Nobel Committee recognized this truth in awarding its first prize for peace to Henry Dunant - the founder of the Red Cross, and a driving force behind the Geneva Conventions."

Happy Human Rights Day all.
 

Speaking of "Sauce for the gander" (as I was in an earlier comment), take a gander at Tom Toles' political cartoon in today's WaPo (12/11/09) on the 5 Americans arrested in Pakistan accused of terrorism to goose things up. (Another possible variation on "The Mouse That Roared"?)
 

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