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Attorney General Eric Holder
Unlike his letter (PDF) yesterday to Sen. Rand Paul, where Attorney General Eric Holder wrote in "extraordinary circumstances"—such as during an ongoing attack—the president can order the use of military force against persons in the United States, today Holder made the extraordinary, indefensible and John Yoo-like claim that the 2001 AUMF empowered the president to deploy the military on U.S. soil as a matter of routine:
Senator Lindsey Graham, Republican of South Carolina, praised the Obama administration for its use of drone strikes abroad and, as he has in the past, offered his view that the wartime authority Congress granted to use military force against Al Qaeda extended to domestic soil. Mr. Holder indicated that he agreed with that proposition. [Emphasis supplied.]
As I have explained before, this view, previously argued by John Yoo, is plainly wrong:
The problem is the 2001 AUMF does not include the language "in the United States." To wit, the Posse Comitatus Act's requirement of "express authorization" is not met. There is no express authorization for military targetting in the United States.

The 2001 AUMF is an abomination. It needs to be repealed. But it does not do what Serwer argues it does.

The Obama Administration can and should confidently state that it is not empowered to target persons in the United States. Because it is not.

Don't believe me? How about Tom Daschle:
Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words "in the United States and" after "appropriate force" in the agreed-upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas -- where we all understood he wanted authority to act -- but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.
Daschle described the Bush Administration as follows:
Instead of employing tactics that preserve Americans' freedoms and inspire the faith and confidence of the American people, the White House seems to have chosen methods that can only breed fear and suspicion.
Yesterday, I spent some time defending Holder from what I believed to be false claims as to what he was asserting in his letter to Rand Paul. Today, there is no defense—Holder is wrong in what he said today. Egregiously wrong. And his testimony "can only breed fear and suspicion."

It was an outrageous statement and should be retracted immediately.

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Comment Preferences

  •  Don't hold your breath (4+ / 0-)

    waiting for a retraction.  You give (gave?) the man far more credit than I.

    "None are more hopelessly enslaved than those who falsely believe they are free." - Goethe

    by jlynne on Wed Mar 06, 2013 at 01:40:07 PM PST

  •  I agree, good piece (8+ / 0-)

    But wasn't this theory of a global-reaching AUMF put into the practice with the NDAA, which authorizes (requires?) the military to take custody of terrorism suspects in the United States? Or, as put by Sen. Mark Udall and Rep. Adam Smith:

    Inviting our armed forces into our cities and towns with the power to indefinitely detain Americans without trial is a misguided attempt that erodes our rights to due process and limits the effectiveness of civilian law enforcement.
  •  I thought Holder was clear yesterday. (13+ / 0-)

    Now he has made the admin.'s position perfectly clear. I doubt there will be any retraction,not from this admin. nor from any admin. in the foreseeable future.
     

    "George RR Martin is not your bitch" ~~ Neil Gaiman

    by tardis10 on Wed Mar 06, 2013 at 01:48:35 PM PST

  •  President Obama during Google+ Hangout (0+ / 0-)
    Obama Discusses Targeted Killing of U.S. Citizens During Google+ Hangout

    by Micah Zenko

    <...>

    Question: “A lot of people are very concerned that your administration now believes that it is legal to have drone strikes against American citizens. And whether or not that is specifically allowed versus citizens within the United States. And if that is not true what will you do to create a legal framework to make American citizens within the United States believe know that drone strikes cannot be used against American citizens?”

    Obama: “First of all, I think, there’s never been a drone used on an American citizen on American soil. And, you know, we respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside the United States. The rules outside the United States are going to be different then the rules inside the United States. In part because our capacity to, for example, to capture a terrorist inside the United States are very different then in the foothills or mountains of Afghanistan or Pakistan.”

    “But what I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we are doing the right thing. I am the head of the executive branch. And what we’ve done so far is to try to work with Congress on oversight issues. But part of what I am going to have to work with Congress on is to make sure that whatever it is we’re providing Congress, that we have mechanisms to also make sure that the public understands what’s going on, what the constraints are, what the legal parameters are. And that is something that I take very seriously. I am not someone who believes that the president has the authority to do whatever he wants, or whatever she wants, whenever they want, just under the guise of counterterrorism. There have to be legal checks and balances on it.”

    http://blogs.cfr.org/...

  •  It's really not that complicated... (7+ / 0-)

    ...the executive branch -- regardless of the party which holds the office -- is going to justify any expansion of its power by exploiting the AUMF to the fullest.  

    Your time would be much better spent figuring out how to repeal the AUMF than looking for reasons why this -- or any other -- administration is going to demure when handed what it considers to be a blank check.

    People can decide for themselves which respective administration is ethical, moral, and principled -- there really is no argument that can sway a partisan from believing his or her party "would NEVER do that -- only the OTHER party does that."

  •  President Obama on the topic (1+ / 0-)
    Recommended by:
    CS in AZ
    Obama Discusses Targeted Killing of U.S. Citizens During Google+ Hangout

    by Micah Zenko

    <...>

    Question: “A lot of people are very concerned that your administration now believes that it is legal to have drone strikes against American citizens. And whether or not that is specifically allowed versus citizens within the United States. And if that is not true what will you do to create a legal framework to make American citizens within the United States believe know that drone strikes cannot be used against American citizens?”

    Obama: “First of all, I think, there’s never been a drone used on an American citizen on American soil. And, you know, we respect and have a whole bunch of safeguards in terms of how we conduct counterterrorism operations outside the United States. The rules outside the United States are going to be different then the rules inside the United States. In part because our capacity to, for example, to capture a terrorist inside the United States are very different then in the foothills or mountains of Afghanistan or Pakistan.”

    “But what I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we are doing the right thing. I am the head of the executive branch. And what we’ve done so far is to try to work with Congress on oversight issues. But part of what I am going to have to work with Congress on is to make sure that whatever it is we’re providing Congress, that we have mechanisms to also make sure that the public understands what’s going on, what the constraints are, what the legal parameters are. And that is something that I take very seriously. I am not someone who believes that the president has the authority to do whatever he wants, or whatever she wants, whenever they want, just under the guise of counterterrorism. There have to be legal checks and balances on it.”

    http://blogs.cfr.org/...

  •  Welcome to Fascist USA (9+ / 0-)

    Historians have already noted that it really DID start with passage of NDAA. (There is a pretty nice record here on the Kos.) They usually don't weigh in until a decade or two passes, generally.

    Holder is just confirming that our "progressive" Administration is going to take the fascist view when it comes to Sections 1021 and 1022 of the NDAA.

    Now, even if the AUMF is rescinded (which it should have been years ago) we have codified almost all aspects of it in NDAA.

    So Holder and Obama continue building on the foundations laid out by John Choon Yoo for George W. Bush.

    Another flaw in the human character is that everybody wants to build and nobody wants to do maintenance. Kurt Vonnegut

    by ToKnowWhy on Wed Mar 06, 2013 at 02:08:14 PM PST

  •  Isn't that what I said. It might not have been in (9+ / 0-)

    the other letter but it was obvious.  We are at war, they've told us that many times, that's why they're doing all this shit, they think we're at war just like in Vietnam or WWII, all bets are off.  I've been saying this for years but few want to admit it.  It might be wrong but that's their mentality. And the AUMF doesn't say the U.S., but it doesn't say it couldn't be either.   That's why it's a GLOBAL war OF terror.

    "The Global War OF Terror is a justification for U.S. Imperialism. It must be stopped."

    by BigAlinWashSt on Wed Mar 06, 2013 at 02:21:07 PM PST

  •  FYI, they've tweaked the language, (0+ / 0-)

    which makes it a lot less clear what's going on.

    Senator Lindsey Graham, Republican of South Carolina, praised the Obama administration for its use of drone strikes abroad and offered his view that the wartime authority Congress granted to use military force against Al Qaeda made no exception for domestic soil. Mr. Holder indicated that he agreed.
    Seems minor, but it strikes me as a very different view.  The AUMF doesn't expressly except domestic strikes, but those could still be foreclosed by some other provision of law, constitution, etc.
  •  Umm... (0+ / 0-)
    Senator Lindsey Graham, Republican of South Carolina, praised the Obama administration for its use of drone strikes abroad and offered his view that the wartime authority Congress granted to use military force against Al Qaeda made no exception for domestic soil. Mr. Holder indicated that he agreed.
    What's so unacceptable to agreeing with Sen. Graham's interpretation of what is in the AUMF?

    The greatest trick the Devil ever pulled was convincing online commenters that they have anything to say.-- B.F.

    by lcj98 on Wed Mar 06, 2013 at 02:53:20 PM PST

  •  A euphemism for pre-emptive Martial Law? (6+ / 0-)

    As if the police haven't been militarized to teeth already, they claim the right to full military strikes on citizens, without at least Congressional approval.

    Someone cover Orwell's ears. He deserves a rest in peace.

    When 1% take 121% of the gains from "recovery", people actually recovering from lost employment are trading down on wages and benefits. Current strategies by moderates don't even consider winning the Class War.

    by Words In Action on Wed Mar 06, 2013 at 03:20:56 PM PST

  •  Is there a transcript? (2+ / 0-)
    Recommended by:
    Militarytracy, Armando

    I spent a good amount of time defending Holder's memo to Paul in another diary, and if this is indeed the case then I wasted my time embarrassing myself.

  •  that AUMF needs to be ended (3+ / 0-)

    every awful thing since then has used it to justify those crimes legally. barbara lee was wiser than most dems knew then and know now, to oppose it.

  •  So again (2+ / 0-)
    Recommended by:
    aliasalias, WattleBreakfast

    Does the president have the legal power, under the AUMF, to order a child's testicles crushed?  Not a serious question two weeks ago.  Today we have our answer, the president can do whatever he wants.  

  •  most of the Justice Dept was retracted years ago (2+ / 0-)
    Recommended by:
    WattleBreakfast, VictorLaszlo

    And it's still a big problem.
    Holder was a dream for the GOP, regardless of their guff. A fixer, known to be pre-corrupted. And we thought things were about to reverse. We've been getting killed since FLORIDA FLORIDA FLORIDA.

    yeah, I know that's not the whole truth, but it is on some things.

    And Rs think eliminating the Post Office will erase the disgruntled...

    Monsanto is poison, they gotta be stopped.

    by renzo capetti on Wed Mar 06, 2013 at 05:50:52 PM PST

  •  "imminent threat" does not have to mean 'imminent' (1+ / 0-)
    Recommended by:
    tardis10

    as in it is definitely going to happen, just that it might happen. So says the 'White Paper' leaked by the Obama administration.

    I'm trying to quote what I'm heard on C Span right now and it makes me sick for two big reasons, number one is that it's being considered at all, number two is that it makes me sick I'm hearing it being questioned (good job too) on the Floor by freaking Mike Lee (R) Utah.

    without the ants the rainforest dies

    by aliasalias on Wed Mar 06, 2013 at 06:11:42 PM PST

  •  There is no constitutional reason I can (0+ / 0-)

    see why Americans are more particularly shielded from the actions of their government in these cases than anyone else.

    Or in any other place.

    Either the federal government is allowed to do something, or they are not.

  •  Do they know something we don't? (0+ / 0-)

    Why would the Administration assert this right if they didn't think they'd need it? There seems little reason to believe that such "extraordinary" circumstances will ever come to pass. So why open this can of worms? They are either trying to assert as much authority as they can on the hypothetical notion that they might need it, or they have some reason to believe that there are domestic terrorists that could not be handled through usual means -- i.e. arrest, prosecution, etc. IMHO I think this right is too broad and Congress should stop it, even if it is highly unlikely to ever be used.

    The civil rights, gay rights and women's movements, designed to allow others to reach for power previously grasped only by white men, have made a real difference, and the outlines of 21st century America have emerged. -- Paul West of LA Times

    by LiberalLady on Wed Mar 06, 2013 at 08:52:29 PM PST

  •  yep. n/t (0+ / 0-)
  •  Good God (0+ / 0-)

    Glad I was gone most of the day.  Why can't we get Holder replaced?  Are they too afraid to approach another confirmation?  What hand does the President have in this?

  •  Rand Paul doesn't fool me though (0+ / 0-)

    Only because I am around a couple of folks that support the new growing crazy militias and I know what he is feeding right now.  I live in a place where many dream of seceding every day.  I know two people who own over 50 weapons each and work daily right now to acquire more.

    They are both soldiers who yammer about the government taking their guns away and it cracks me up.  I have asked both of them who would come to take their guns away...and did they know they are the government?  They claim local law enforcement would take their guns away which really made me hoot with laughter.  All over the nation local governments attempt to buck federal authority all the damned time.  I have told both of them the only people capable of doing such a thing under order of the federal government IS THEM!

    It is the militia mentality though that Rand is feeding, and the militias in this country are growing swiftly right now.  They want this President's authority to be delegitimized and their means of feeling that he isn't their President God Damn It is through weapons.  If the President CAN drone your ass though if your militia takes over a small town (this scenario was drawn out for me by one of these gun nuts) THAT'S NOT FAIR!  Your right to rise up is being curtailed.  Not kidding, that's what he says.

    Rand Paul doesn't care about protecting American citizens though, he's just feeding the growing militia mentality out there seeking to undermine federal authority because their President is black and that can't happen.

  •  Glad to see a liberal calling this out (2+ / 0-)
    Recommended by:
    VictorLaszlo, JohnnyBoston

    Too many of our brethren are too busy falling in line. I argued against Ashcroft's detention policies 12 years ago in my college paper, and a lot of liberals seem to have forgotten that we hated policies like this under Bush. Bad policy is bad policy, regardless of who implements it.

    Where is the Republican Party of George Romney?

    by wolverinethad on Thu Mar 07, 2013 at 08:07:09 AM PST

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