More New York Times Editorial Errors

The New York Times editorial page has still not corrected its error of the other day, when it promoted John Brennan to National Security Adviser. But that hasn't stopped our friends over there from making some new doozies in this morning's offering, entitled "Repeal the Military Force Law." As per my usual practice, I'm going to refrain from criticizing the substance of the Times's remarkable argument, which concludes:

A big part of the problem is that the authorization to use military force is too vague. It gives the president the power to attack “nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 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.”

Making the law more specific, however, would only further enshrine the notion of a war without end. And, as Jeh Johnson, then counsel to the defense secretary, said in a speech last November, “War must be regarded as a finite, extraordinary and unnatural state of affairs.”

The right solution is for Congress to repeal the 2001 authorization. It could wait to do that until American soldiers have left Afghanistan, which is scheduled, too slowly, for the end of 2014. Better yet, Congress could repeal it now, effective upon withdrawal.

I'll leave it to others to point out that the Times has run a 10-paragraph editorial calling for the repeal of a hugely consequential law with zero consideration of whether that law---in whole or in part---is still necessary. I'll leave it to others to point out that the Times has called for the repeal of the law authorizing military force against the threat from Al Qaeda with zero consideration of the nature and extent of that threat today. I'll leave it to others to point out that seeing only costs in the AUMF, and refusing to consider the opportunity costs of its repeal, is not a mark of seriousness. I'll leave it to others to ask whether the Times is really suggesting that the United States should just unilaterally stop using military force against Al Qaeda. I'm not going to make any of those points.

I'm going to focus instead on the multiple errors contained in a short piece of the editorial's text:

Mr. Bush used the authorization law as an excuse to kidnap hundreds of people---guilty and blameless people alike---and throw them into secret prisons where many were tortured. He used it as a pretext to open the Guantánamo Bay camp and to eavesdrop on Americans without bothering to obtain a warrant. He claimed it as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks.

Unlike Mr. Bush, Mr. Obama does not go as far as to claim that the Constitution gives him the inherent power to do all those things. But he has relied on the 2001 authorization to use drones to kill terrorists far from the Afghan battlefield, and to claim an unconstitutional power to kill American citizens in other countries based only on suspicion that they are or might become terrorist threats, without judicial review.

Error #1: "[Bush] claimed [the AUMF] as justification for the invasion of Iraq, twisting intelligence to fabricate a connection between Saddam Hussein and the 9/11 attacks." Bush certainly claimed an AUMF as justification for the 2003 invasion of Iraq, but he did not claim as authority the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001), that is the subject of the present New York Times editorial. The basis for the invasion of Iraq was a different authorization---to wit, the Authorization for Use of Military Force Against Iraq Resolution of 2002, Public Law 107-243 (2002). Error #2: "Unlike Mr. Bush, Mr. Obama does not go as far as to claim that the Constitution gives him the inherent power to do all those things." This is a very strange pivot for the Times to be making here, since the whole point of the editorial---and the previous paragraph---is that Bush was abusing the AUMF, not abusing or claiming inherent constitutional powers. Indeed, to the extent the president claims inherent constitutional authority to take strong actions, the AUMF becomes less relevant, because it ceases to be the principal authorizing mechanism for executive action. Moreover, to the extent the Times is suggesting that Obama has eschewed claims of inherent authority to use force overseas, it is dead wrong. Consider the OLC opinion defending the Libya intervention:

. . . Attorneys General and this Office “have concluded that the President has the power to commit United States troops abroad,” as well as to “take military action,” “for the purpose of protecting important national interests,” even without specific prior authorization from Congress. . . . This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it . . . derives from the President’s “unique responsibility,” as Commander in Chief and Chief Executive, for “foreign and military affairs,” as well as national security.

In other words, the Times in these paragraphs is both objecting to claimed inherent powers as somehow reflecting problems with the AUMF and at least implying that Obama---unlike Bush---would not take overseas military action in the absence of congressional authorization. Neither point is correct. Error #3: "But he has relied on the 2001 authorization to . . . kill American citizens in other countries based only on suspicion that they are or might become terrorist threats, without judicial review." This is false in at least two ways. For one thing, it is a gross mischaracterization of the administration's legal position with respect to the targeting of Americans overseas with lethal force. The administration has claimed the authority to target Americans only where (a) the target is a senior operational leader of Al Qaeda or associated forces, (b) he poses an imminent threat, (c) his capture is not feasible, and (d) targeting would be consistent with the laws of war. There is no "suspicion" or "might become" about it. Second, the use of the plural "citizens" here suggests a campaign of targeting of U.S. nationals. Nothing like this has occurred. The administration has claimed the authority to kill exactly one citizen (though two others have been killed collaterally during the Obama administration in strikes not aimed at them). Moreover and more subtly, I think that it's not quite correct to say that the administration has relied on the AUMF for its legal authority to target Americans overseas---though it is certainly true that it has relied on the AUMF for the proposition that the United States is in a state of armed conflict that justifies targeting the enemy with lethal force. The administration's claim of authority, after all, is limited to cases of imminent threat where capture is not feasible. This is not an accident. Circumstances of imminent threat in international law trigger a nation's right of self defense for purposes of a resort to force analysis. They also undeniably trigger the president's inherent authority to use force for purposes of constitutional separation of powers domestically. And in domestic law enforcement, they also facilitate the resort to lethal force by police. So by limiting the claim of power to circumstances of imminent threat where capture is not feasible, the administration is actually taking the Al Aulaqi killing outside of the realm in which it needs the AUMF at all. Put another way, imagine an imminent non-AUMF threat in which capture is not an option. While the White Paper does not say this, its analysis strongly suggests that targeting would be lawful there too. I won't be holding my breath for any corrections.