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  •  I disagree (1+ / 0-)
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    jdsnebraska

    Graham's question is perfectly clear as is Holder's answer:

    Graham: THE MILITARY HAS LEGAL AUTHORITY UNDER THE CONSTITUTION AND THE AUTHORIZATION TO USE MILITARY FORCE TO STRIKE BACK AGAINST AL QAEDA, IS THAT CORRECT?

    Holder: YES.

    Graham: NOW, WHEN WE SAY CONGRESS GAVE EVERY ADMINISTRATION THE AUTHORIZATION TO USE MILITARY FORCE AGAINST AL QAEDA, WE DIDN'T EXEMPT THE HOMELAND, DID WE?

    Holder: NO, I DON'T THINK WE DID.

    In Afghanistan we have deployed tens of thousands of soldiers, fired innumerable, munitions, killed thousands of people.

    Graham is asserting, and Holder is agreeing, that the President has been empowered to use military force like we have outside of the United States.

    To wit, "the Homeland is not exempt." Now is it likely, appropriate, good policy? That's a different point. The point they are making is the President is empowered to do what he feels is appropriate. There are no legal restrictions from a Constitutional point of view, no due process issues, no nothing.

    The folllowing exchange highlights this point:

    Graham: WOULDN'T THAT BE KID OF CRAZY TO EXEMPT THE HOMELAND, THE BIGGEST PRIZE, TO SAY THAT THE MILITARY CAN'T DEFEND AMERICA HERE IN AN APPROPRIATE CIRCUMSTANCE?

    Holder: NO, I THINK THAT'S RIGHT.  THE QUESTION OBVIOUSLY IS WHAT FORCES DO WE USE, BUT I THINK WE HAVE THAT AUTHORITY.

    The question is "what forces to use, but I think we have that authority."

    This is directly a Posse Comitatus problem as I outline in my post from yesterday.

    •  Doesn't the Insurrection Act cover it? (1+ / 0-)
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      jdsnebraska

      It appears to bypass Posse Comitatus issues in some circumstances that would be similar to the sorts of circumstances where drone use is being hypothesized.

      "No one life is more important than another. No one voice is more valid than another. Each life is a treasure. Each voice deserves to be heard." Patriot Daily News Clearinghouse & Onomastic

      by Catte Nappe on Thu Mar 07, 2013 at 02:17:43 PM PST

      [ Parent ]

      •  The Insurrection Act (1+ / 0-)
        Recommended by:
        Catte Nappe

        refers to attempts to overthrow the government.

        The Civil War is an example of what would be covered there imo.

        To me the issues discussed on the WoT and the AUMF fall squarely into Posse Comitatus.
         

        •  Still looks like ample wiggle room to me (0+ / 0-)
          Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
          But you are the lawyer ;)

          "No one life is more important than another. No one voice is more valid than another. Each life is a treasure. Each voice deserves to be heard." Patriot Daily News Clearinghouse & Onomastic

          by Catte Nappe on Thu Mar 07, 2013 at 02:45:44 PM PST

          [ Parent ]

    •  I disagree that (0+ / 0-)

      Graham is asserting that the same power under AUMF exists outside the US as inside.  The focus of his line of questioning seems to be surrounding imminent threats.

      Here was the conversation that occurred directly before the blockquote posted above:

      Graham:  SO THE POINT I'M TRYING TO MAKE IS THAT HYPOTHETICALLY, IF THERE ARE PATRIOT MISSILE BATTERIES AROUND THIS CAPITOL AND OTHER KEY GOVERNMENT INFRASTRUCTURES TO PROTECT THE CAPITOL FROM AN ATTACK, IT WOULD BE LAWFUL FOR THOSE BATTERIES TO LAUNCH, IS THAT CORRECT?

      [crosstalk]

      Graham:  IF THERE WAS A -- IF THERE WAS INTELLIGENCE THAT AN AIRPLANE WAS COMING TOWARD THE CAPITOL OR THE WHITE HOUSE, IT HAD BEEN HIJACKED -- IT WOULD BE OKAY FOR OUR MILITARY TO ACT, WOULDN'T IT?

      Holder:  YES.

      Graham: THAT WOULD BE AN IMMINENT THREAT.

      And this portion was discussed directly after the blockquote posted above.
      Graham:  WHAT WOULD WE ALL GIVE TO HAVE THOSE PATRIOT MISSILE BATTERIES AVAILABLE ON SEPTEMBER THE 10th, 2001, IN NEW YORK AND WASHINGTON? IT WOULD HAVE MEANT THAT WE'D HAVE LOST A PLANELOAD OF AMERICAN CITIZENS, BUT WE'D SAVE THOUSANDS MORE.  THAT'S THE WORLD IN WHICH WE LIVE IN.
      It seems to me that the most we can without a doubt ascertain from this conversation is that Holder agrees that the President can use military force to stop an imminent attack.  You're right, I don't think such a thing would be authorized specifically by the AUMF, but it's a power held naturally by the government, to stop imminent threats or attacks from happening.  As far as I understand it, Posse Comitatus does not prevent the government for taking action when law enforcement is not able--this would be such a case.

      But from this piece of tape alone, it is unclear at best whether Holder would agree that the President can order military strikes inside the United States without an imminent threat, like we're doing in Yemen or Pakistan.

      Of course if we disagree on that point that's certainly okay.

      •  We'll just have to disagree (1+ / 0-)
        Recommended by:
        jdsnebraska

        I think it is exceptionally clear on the legal issue.

      •  I'd add (1+ / 0-)
        Recommended by:
        jdsnebraska

        that you are correct that the President has constitutional power and duties to defend against imminent attack.

        There is no need to even reference the AUMF for that.

        That is the point. The reference to the AUMF is why it is clear that the argument is that the President was granted equivalent authority by the AUMF in the US as he has outside the US.

        Otherwise there is no point to the question.  

        •  Perhaps if it were a law colloquium. (0+ / 0-)

          But I think I'll need more than a Senate hearing, during which the only kind of military action Graham referenced is self-defense for an imminent threat, to be convinced that Holder believes that military actions can be authorized on US soil by the President absent such a threat.

          I know Lindsey (I've been misspelling his name all this time) Graham is a lawyer, but he's also a politician.  Is he asking a specific legal question about whether the AUMF authorizes military strikes inside the US absent an imminent threat, or is he asking a political question about defending the homeland against imminent threats?  Tough to tell.  Do you think Graham would agree, as a lawyer, that Posse Comitatus prevents military action inside the United States absent an imminent threat?

          There is too much uncertainty for me to agree conclusively.  It raises the possibility, I'll give you that much, but it's not enough for me.

          But the constructive conversation was helpful, and we can disagree like gentlemen, thank you.

    •  But the act says this: (0+ / 0-)
      From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress ;
      So doesn't an act of Congress - in the AUMF - override it?

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