Congress gave President Bush the authority to assassinate anyone, anywhere, using any means

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Perhaps you have not yet read Jane Mayer’s latest in the New Yorker, which is, as with most of her articles, a comprehensive and balanced account of the tools used by policymakers in the war on terrorism, and the dilemmas they pose. She looks at the use of drones by the CIA and Pentagon to target terrorists (and people who may not in fact be terrorists) in Afghanistan and Pakistan, the region we’re now grimly referring to as ‘Af/Pak.’ In Mayer’s telling, the drone attacks are seen by some policymakers as preventing al Qaida from regrouping and planning more attacks against the United States. On the other hand, they also may be creating new enemies of America by attacking groups in Pakistan who are not directly tied to al Qaida, and also by creating excessive collateral damage when they hit, or miss, their targets.

It’s only a matter of time before a Member of Congress or two begins to say ‘tut tut’ about Mayer’s findings. Before they do, they should consider one key paragraph in Mayer’s story (which is only fully available online to subscribers:

Before September 11th, the C.I.A., which had been chastened by past assassination scandals, refused to deploy the Predator for anything other than surveillance. Daniel Benjamin, the State Department’s counterterrorism director, and Steven Simon, a former counterterrorism adviser, report in their 2002 book “The Age of Sacred Terror” that the week before Al Qaeda attacked the U.S. George Tenet, then the agency’s director, argued that it would be “a terrible mistake” for “the Director of Central Intelligence to fire a weapon like this.”

Yet once America had suffered terrorist attacks on its own soil the agency’s posture changed, and it petitioned the White House for new authority. Within days, President Bush had signed a secret Memorandum of Notification, giving the C.I.A. the right to kill members of Al Qaeda and their confederates virtually anywhere in the world. Congress endorsed this policy, passing a bill called the Authorization for Use of Military Force. Bush’s legal advisers modelled their rationale on Israel’s position against terrorism, arguing that the U.S. government had the right to use lethal force against suspected terrorists in “anticipatory” self-defense. By classifying terrorism as an act of war, rather than as a crime, the Bush Administration reasoned that it was no longer bound by legal constraints requiring the government to give suspected terrorists due process.

The risks of the C.I.A.’s Predator drones : The New Yorker.

Ever since the papers revealed earlier in the year that the Bush administration and the CIA had contemplated ‘executive assassination rings,’ I have been raising this point, but I think Mayer crystallizes it more clearly than I’ve seen anywhere else in print.

Had the Bush White House decided on its own, and without any additional authorization from Congress, to pursue assassinations of terrorist targets via drones and other means, there would be ample cause for worry. But when the Authorization for Use of Military Force, or AUMF, was passed almost unanimously by the US Congress (420-1 in the House, the 1 being Rep. Barbara Lee, 98-0 in the Senate), the legislative branch agreed that if the executive branch was “taking the gloves off,” they would be kept in Congress’s Cloak Room.

The Congress, of course, had authorized the President, “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.”

But Congress went a step farther.

On September 14, when this measure was voted on in the House, there was very little debate. The debate that did occur came when Rep. John Tierney, Democrat of Massachusetts, proposed adding a requirement that the President report to Congress on how it was using the war powers granted in the AUMF every 60 days. This measure was soundly defeated, and in opposing it, Members of Congress made it clear that they were giving the executive branch broad legal authority. See Rep. Henry Hyde, the retired Republican chair of the House International Relations Committee. He stated on the House floor:

This is illogical because the whole point of the joint resolution we are considering this evening is to clear away legal underbrush that might otherwise interfere with the ability of our President to respond to the treacherous attack on our Nation that took place 3 days ago.

The moment I read that phrase, “to clear away legal underbrush,” my heart sank. If the White House had made it clear to Congress that assassination was a tool it wanted to bring out of the shed, the limitations placed on its use in the 1970s were clearly the sort of ‘legal underbrush’ that Congress was ‘clearing away’ by granting the executive branch almost unlimited authority to use force against terrorists.

No if, ands, or buts. Tierney’s motion went down, and no one rose up to say that there might be a problem with the reach of the authority that had been granted to this White House or any White House in the future.

A few weeks later, on October 1, 2001, Senator Robert Byrd, a backer of the AUMF, took to the Senate floor and addressed this very question of whether the Congress had gone too far in granting powers to the president:

I wonder, in retrospect, if a few hours, or indeed if a very few hours, of searching debate and a little more research prior to the passage of S.J. Res . 23 might not have resulted in a more clearly defined grant of power. We may never resolve the political tension between the executive and legislative branches over the constitutional division of war powers, but we might have been able to better clarify the intent of S.J. Res . 23 . Such clarity is important.

What more have we heard about the compunctions expressed by Senator Byrd since that time? Certainly some questions have been clarified by Congress and the courts. For instance, that the treatment of detainees and the use of surveillance involving communications in the United States was not governed by the AUMF. But in matters requiring the use of lethal force, ordered by a president, be it George W. Bush or Barack Obama, few substantive questions have been raised.

So before the use of assassinations, via drone or special forces, becomes a political football in Congress, our legislative branch needs to take a good long look in the mirror. If it is truly against American interests to use these technologies, it is time for Congress to revisit the 2001 AUMF against terrorists. The war on terror may not be over, or it may not any longer be a ‘war.’ But if Congress is serious about restraining the tactics that the executive branch can use to strike targets it associates with al Qaida terrorism, it should limit them with open votes debated over on the floors of both houses of Congress, and not with the flypaper of committee investigations. Any other moves would be dishonest abrogations of Congress’s true responsibility in this matter, intending only to produce political gains by those who bring them forward.