02/13/15 – Marjorie Cohn – The Scott Horton Show

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All right, y'all, welcome back to the show.
I'm Scott Horton.
It's my show, The Scott Horton Show.
On the line, I got Marjorie Cohn from the Thomas Jefferson School of Law in San Diego.
How are you doing, Marjorie?
Fine, Scott.
How are you?
I'm doing real good.
Appreciate you joining us again on the show.
I saw you quoted in a couple of news stories here about the new authorization to use military force and thought it'd be a good opportunity to try to get a rundown of this thing before it's too late.
It seems like politically, for different reasons in D.C., that it's going to actually have some trouble.
So maybe regular Americans could make the difference there.
I don't mean to be too hopeful, but a good education would be, you know, the first step in that.
So tell us, what do you think is important for Americans to understand about this new AUMF?
Well, although this proposed AUMF contains some purported limitations, President Obama is essentially asking Congress to bless endless war against anyone he wants, wherever he wants.
The authorization would read, it authorizes force against the Islamic State and its associated persons or forces, which is defined as individuals and organizations fighting for on behalf of or alongside ISIL or any closely related successor entity in hostilities against the United States or its coalition partners.
Very, very broad.
Also, it would prohibit enduring offensive operations.
It would prohibit troops during enduring offensive operations.
But there's a loophole that would allow ground troops.
The 3,000 military personnel currently in Iraq are exempted.
So are special operations forces, and that's who we're seeing mounting armed combat in Afghanistan.
There was an article on the front page of the New York Times today that there's, even though Obama has said that combat operations are over in Afghanistan, there have actually been many U.S. troops involved with combat operations in a secret war.
And also this loophole for ground troops would include people collecting intelligence involved with kinetic strikes or the provision of operation planning and other forms of advice and assistance to partner forces.
You know, the way we got involved in fighting in the Vietnam War was using special forces, and it's a slippery slope.
And so this really is no limitation at all.
The 2001 AUMF, which is not being rescinded, Obama wants it tailored or revised, has been stretched way beyond what Congress had intended.
When Bush went to Congress in 2001 to get that AUMF, he initially demanded authority to make war to deter and preempt any future acts of terrorism or aggression against the United States.
But Congress refused to grant him that power.
They said this authorization is limited to people, organizations, states, who planned and helped with the 9-11 attacks.
And yet that 2001 AUMF has been used to justify what Obama's doing now with his drone strikes in countries we are not at war with and with his bombing of Iraq and Syria.
And so what he's asking Congress to do basically is to retroactively endorse a war that he has already started.
Right.
And now it sounds like with some of this language, it sounds like if this had been the original AUMF, then George Bush wouldn't have even needed to try to get a separate one for the invasion of Iraq.
He would have just said, hey, I can, you know, this language is broad enough, I can do anything.
If the original AUMF will let him kill Somalis all day, then certainly something like this would let him, I don't know, invade Iran, al-Qaeda's sword enemies.
You're right.
I mean, that first AUMF, the 2001 AUMF that Obama is not asking to be repealed, he is using as a legal basis for what he's doing.
He's saying it makes it legal.
Then if that's the case, why does he need another one?
And it's because he knows that that original one doesn't authorize doing what he's doing.
So and you're right, if it did authorize, you know, anything really, then Bush wouldn't have needed the 2002 AUMF to invade Iraq.
And Obama is asking that 2002 AUMF be rescinded, because that one's limited to Saddam Hussein and weapons of mass destruction.
Right.
Yeah, it's funny that, well, I don't know.
So in other words, according to Obama's own interpretation, he didn't need this thing at all.
What's the point of it then?
You know, it's politics.
I think he wants to say, you know, look, I'm working in a bipartisan way.
You know, I'm going to Congress because there have been people in Congress saying you need to get some authorization.
Nobody likes this.
There's an article in today's New York Times.
The Democrats don't like it.
The Republicans don't like it.
Pretty much nobody likes it.
The Republicans think it doesn't go far enough.
They would love to see, I think, probably a major invasion of who knows what countries all over the world.
They're very militaristic, many of them.
The Democrats are saying that it, you know, that it is not narrowly tailored enough.
So nobody really likes it.
I don't think it's going to fly.
I think we'll see a lot of alternative AUMFs introduced and, you know, we'll see if Congress can agree on anything, really.
Yeah.
Well, you know, I don't know.
I guess I'd be happy for them to, you know, fail to get it together.
I mean, as bad as the Libya war was, it was better that they tried to authorize it and failed, even though they also tried to deauthorize it and failed at that, too.
But the fact that they failed to authorize the Libya war, even after it had been going on for months there, is, you know, I don't know.
I guess it really doesn't mean anything.
It's kind of a symbolic thing.
So it's at least a serious vote of no confidence in current leadership.
If he can't get an explicit new authorization for the war he's been waging for half a year already.
You know, it is unusual, Scott, because when a president is and Bush went to Congress before he invaded Iraq and before he invaded Afghanistan.
And usually when a president's on the brink of invading another country goes to Congress, Congress gives him what he wants.
But since Obama's already been bombing Iraq and Syria and, you know, using his drones in Pakistan, Yemen, Somalia, all over, I don't think Congress sees any real hurry about this.
There's another thing, too, that we should talk about, and that's the United Nations Charter.
Congress can't give Obama the lawful right to use military force in Syria because the Syrian government has not given its permission.
And the Security Council has not approved it either.
And in Iraq, the Iraqis, the Iraqi prime minister has invited us to help in the war against ISIS.
And so Obama's using that under Article 51 of the UN Charter as a right to self-defense.
But that government, the al-Abadi government, is a puppet government that the U.S. installed.
And so really it doesn't have authority under international law to consent to U.S. military operations in Iraq.
In Vietnam, there was a puppet government asking us to conduct military operations very similar and also violated international law.
So this really is kind of a symbolic exercise more than anything.
And what it reveals is that Obama intends to continue to wage a permanent war throughout his presidency, and it will presumably last beyond his presidency.
He has killed more people with drone strikes than died on 9-11.
Most of them civilians, only 2% high-level al-Qaeda and Taliban leaders, and created many more enemies for the United States because people see their loved ones getting killed or wounded in these drone strikes, and they hate the United States even more.
But he likes the drones because U.S. pilots don't get killed, and Americans don't like it when Americans get killed.
Well, and that brings us back to the question of enduring troops and the future, the next worst part of the Iraq War.
And we'll pick that up on the other side of this break with the great Marjorie Cohen, law professor at the Thomas Jefferson School of Law in San Diego.
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All right, y'all, welcome back to the show, Scott Horton Show.
Talking with Professor Marjorie Cohen of the Thomas Jefferson School of Law in San Diego.
I'm talking about the new AUMF.
And you've mentioned Vietnam here a couple of times in terms of installing a puppet and asking for an invitation to stay, which has been the procedure lately in the last few wars as well.
But I wonder exactly how does this language compare to the Gulf of Tonkin resolution?
I guess it's mostly conceived of as saying, go ahead, LBJ, do whatever you want.
But is it this specific or how do you compare the two?
Well, they both tell the president he can use all necessary force.
And of course, that's very vague.
So and this one purports to be very specific, you know, with the associated persons and forces and, you know, no enduring offensive operations, no ground troops.
But in fact, as I've said, it's very, very broad.
And, you know, that's what it is.
It's very it's being very specific about broadly defining every part of it.
Right.
Right.
Right.
Right.
Exactly.
You know, we've had this so-called war on terror, which George Bush called the global war on terror.
Obama doesn't use that phrase, but he has continued Bush's global so-called global war on terror, making the whole world a battlefield, killing anybody anywhere he wants.
No due process, even though he says he'd rather capture people than kill them.
He's been he has been assassinating people all over the world.
And the Institute for Economics and Peace just released a global terrorism index and said that terrorism terrorist incidents have climbed dramatically since we started this war on terror.
In 2000, there were fifteen hundred terrorist incidents by 2013.
Ten thousand, mostly in Iraq, Afghanistan, Pakistan, Nigeria and Syria.
And also last year was the deadliest year for civilians in Iraq since the height of the U.S. war there.
According to Iraq body count, 17 more than 17000 civilians were killed in Iraq last year and more than seven.
Seventy six thousand people, over thirty five hundred of them, children died in Syria last year.
You know, our military operations in Iraq and Syria are not alleviating the humanitarian crisis.
And ISIS has tripled its ranks from ten thousand to three to thirty thousand.
And when we bomb people in different groups who live in the same area where ISIS operates, that actually that actually sends people makes people ally with ISIS instead of instead of more moderate groups.
And, you know, we are also killing civilians are are in December.
One of the U.S. coalition bombs hit a jail operated by ISIS in Syria and killed at least 50 civilians.
So, I mean, what are we doing there?
We you know, it's not working.
What we really need to be doing is pursuing diplomacy, pressuring our allies to stop allowing ISIS over their borders and stop financing and arming anybody who claims to oppose Assad in Syria.
And we are allies who are allowing ISIS over their borders and financing and arming these so-called opposition groups in Syria are Turkey, Saudi Arabia, Qatar and the United Arab Republic.
There are still a number of groups working nonviolently in Iraq, and that includes the Organization of Women's Federation, the Federal Federation of Workers Council, the trade unions in Iraq.
And there are groups we should be working with.
We should be pursuing heavy diplomacy.
You know, we have Obama, you know, on the verge of sending lethal military aid to the Ukraine.
And and yet there is real diplomacy being pursued.
Angela Merkel is is in the middle of that.
So and the U.N. charter is very clear that diplomacy and peaceful resolution of disputes are mandatory.
That military action is only a last resort and only in self-defense or when the Security Council approves it.
And and so once again, the United States is, you know, throwing its bombs around all over the world and expecting that to create peace.
And it's just counterintuitive.
It won't work.
Well, yeah, and it depends who's who when it comes to who's expecting what out of it.
But I wonder about when it comes to the pseudo restrictions in here about no enduring ground troops and this kind of thing, especially since Obama's almost a lame duck at this point, pretty much is a lame duck at this point.
And and mostly, Marjorie, this conversation is about how Hillary or Jeb are going to run their war over there.
And it seems like they could argue pretty simply that, oh, that AMF, it does seem to have some restrictions about enduring this and that.
But come on, that's trying to mandate a Lyndon Johnson micromanaging kind of policy by politicians.
And that's not really up to you.
I'm listening to my generals and they say we need some troops and we're in midstream here and you authorize the conflict good and well and and you made it good and broad on territory.
And I like that.
But any restrictions in it?
Come on, you can't tell me what to do on the commander in chief moving troops.
That's not up to Congress to dictate how many troops are needed, where in order to succeed in our glorious mission, etc.
Well, Congress has the power under the Constitution to declare war.
And Obama is, you know, is pursuing foreign policy.
And, you know, the first of all, the proposal, the proposed AMF, as I said, is very vague and, you know, has huge loopholes.
Enduring, no enduring offensive actions.
What does enduring mean?
How long?
What if it happens for a month and then we leave and then we come back for another three months?
Is that enduring?
And what is defensive?
I mean, you know, what is offensive?
What if U.S. troops are attacked and we respond and, you know, thousands of ground troops go in and get into a fight?
Is that offensive or defensive?
So, you know, it's very vague.
Again, he's already claiming that he has the power under the 2001 AUMF to do what he's doing.
And, you know, we can't really believe what he says because when Obama gave that speech at the National Defense University in 2013, he talked about rules for targeted killing of other people with drone strikes, et cetera, and didn't issue the actual guidelines but issued a fact sheet.
And it said that the, you know, that someone could be targeted if they were a continuous imminent threat.
But yet a Department of Justice white paper about killing U.S. citizens in targeted killing had been leaked earlier.
And that said that, well, you know, it doesn't really have to be imminent because there doesn't have to be any imminent threat on a U.S. person or target.
And then he also said, it says in his fact sheet, rules for drone strikes that capture must be infeasible.
But it doesn't say what infeasible is.
It really looks like it means inconvenient.
So basically, and I believe it was the Washington Post that reported that the Obama administration wasn't even using, wasn't really following these rules that it had set for itself.
And plus the fact that when Obama, you know, extended his war in Iraq and started the war in Syria, you know, invaded Syria, that he said that these rules didn't apply anyway.
So, I mean, it's, you know, it's kind of like a shell game.
You know, he has these rules which are vague to start with, and then he doesn't follow them anyway.
And so it's really kind of like a charade, I would say.
Right.
Yeah.
The restrictions are there, but so vague he doesn't even need to defy them.
He can just.
Right.
Right.
Right.
He felt the slightest bit of pressure.
He just do what he wants anyway.
And, hey, if he can outright defy the Constitution and outright defy the War Powers Act, et cetera, et cetera, well, then, you know, I guess he can do whatever he wants.
He started a war in Libya on his own say, so they didn't even pretend that was defensive.
Well, actually, actually, the Security Council did pass a resolution, but the Security Council.
But he didn't go to Congress, though.
Well, yeah, that's true.
But Security Council did say that they had to pursue an immediate ceasefire, which they didn't do.
So they didn't even that it didn't even comply with the Security Council resolution.
And, you know, Obama is really following in the footsteps of George W.
Bush and other presidents who have launched illegal wars, illegal, killed, you know, untold numbers of people and made us less safe, actually, you know, really losing the wars in Vietnam, Iraq and Afghanistan.
And, you know, tremendous loss of human life, American and non-American human life.
And I think that Bush's wars in Iraq and Afghanistan cost somewhere between $3 and $4 trillion.
Now, of course, Scott, I can't think of anything that money could be used for more usefully in this country.
We don't have any need for, you know, infrastructure, health care, education, you know, these kinds of things.
So I guess it's good to just, you know, throw it down the drain and kill people in other countries.
But but, you know, I don't think that most people really would buy that if they knew what was happening.
Right.
Yeah, that's the thing.
It seems like this AUMF is just marking some kind of, I hope, at least midpoint or something in the long war that they've launched here.
It's not going away anytime soon in the chat room.
They're saying, hey, this opens up reinvading Libya now and Nigeria as well.
And on it goes.
Sorry, we're out of time.
Thank you so much for your time, Marjorie.
My pleasure, Scott.
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