06/15/15 – Jonathan Landay – The Scott Horton Show

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Jonathan Landay, McClatchy Newspapers, he writes a lot of things.
First of all, I want to talk with you about this one with Marissa Taylor.
Obama's legal rationale for war against the Islamic State, secret and very thin.
Now, this isn't the most important part of the war, the war itself is, but it is extremely important, and it's extremely complicated, as you guys explained, so please do, sir.
Okay, so generally what happens when a president initiates and authorizes foreign military operations without congressional authorization, he has to state his reasons why he's doing this, and those reasons get pretty complicated, as you yourself just said, but they are usually contained in very concise, very comprehensive written legal analyses that are prepared for the president by a office in the Justice Department known as the Office of Legal Counsel, and you've talked about OLC memos in the past, we know how secret the Bush administration kept theirs, whether it had to do with torture, rendition, and warrantless wiretapping by the NSA of American citizens.
In this case, it appears, well, we've been told, that such a legal analysis has not been presented to the Congress of the United States, as I said, setting down the case law, both domestic and international, and legal decisions that back up the president's powers, in this case, the powers that are being claimed by President Obama, to be able to send U.S. military personnel and equipment into harm's way in both Iraq and Syria, and we're almost a year in Iraq, a little less than that in Syria, and Congress is being asked to pass a resolution, a new resolution, giving the president the authority to do all of this, and they haven't been able to.
One of the things that's missing is this concise legal analysis.
All the administration has given the Congress, and just a few members of Congress, is a four-page document that essentially adds up to nothing more than talking points, and so there are members who want to see a concise Office of Legal Counsel opinion on the case law, and both, as I said, domestic and international, that the president, on which the president is basing the powers that he is using to send American troops to Iraq, and send American air power to Iraq and Syria without congressional authorization, specific congressional authorization.
So now, and then, so what exactly are these talking points?
I guess they try to invoke like shades of a few different kinds of jurisdictions, right?
Well, he is the president, and he has the authorization from 2001, and after all they never did repeal the authorization from Iraq War 03, and Maliki invited us, and this and that, the other UN loophole, and God knows what.
Is that basically it?
They don't have a real argument, so they got little pieces of a lot of them?
What they're saying, you got a whole bunch of it.
First of all, originally when he first decided to authorize the operations against the Islamic State in Iraq and then in Syria, the president cited what's known as his Article 2 powers, his power as the commander-in-chief, but in this document it really just shades over that.
It just kind of glances at it, doesn't really spend a lot of time, because there are some people who dispute whether or not the president has such powers, whether or not he's guided by the War Powers Act, which says that after 90 days you've got to get a president, you've got to get a congressional authorization, or 60 days, I think you have to get congressional authorization to have troops engaged in foreign military operations, and after 90 days, if you ain't got one, they got to come out.
In this case, though, for the most part, this four-page document, essentially talking points, makes the argument that you stated first, that he has the authorization under the 2001 Authorization for the Use of Military Force, which let's admit was passed with regard to Al-Qaeda, passed in the aftermath of the 9-11, and it authorized the use of military force to President Bush at that time against Al-Qaeda and associated forces who were involved in some way, or associated in some way, with the 9-11 attacks.
Well, a lot of critics are saying, you know, it's a pretty big stretch to say that the Islamic State is an associated force that you can link to 9-11, since it has basically broken from Al-Qaeda, and they are actually fighting each other in Syria.
The administration insists that, in fact, the quote from the document, quote, the recent split between ISIL, they call it ISIL, the Islamic State of Iraq and the Levant, even though ISIS calls, the Islamic State calls itself the Islamic State.
I'll go back to that.
The recent split between ISIL and Al-Qaeda's current leadership does not remove ISIL from coverage.
Well, there are a lot of people in Capitol Hill and elsewhere who say that's pretty twisted logic, because the Islamic, it's very hard to draw a line from the Islamic State back through its predecessor, the Islamic Al-Qaeda in Iraq, and then from there back to Al-Qaeda, and from there back to 9-11.
The second resolution, congressional resolution, that the administration is basing its authority on is the 2002 resolution that basically authorized President Bush to invade Iraq and overthrow Saddam Hussein.
Well, Saddam's gone, and the situation there, so is his regime, and the situation there, there's no weapons of mass destruction, and so the situation there barely, I mean, it's hard to really fit the 2002 resolution to any of this.
The administration insists that, in fact, you can, because that actually gave the president the authority to protect Iraqi democracy such that it is.
Oh, hold it right there, we'll be right back.
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Alright, guys, welcome back.
It's my show, the Scott Horton Show.
I got Jonathan Landay on the phone reporting for McClatchy Newspapers, and we're talking about this very important piece he's got on the very thin legal rationale, secret legal rationale for the war, from what we know of it anyway.
It's secret because of how thin it is, obviously.
But so, this obviously raises the question, Jonathan, why the hell won't Congress just, you'd think they'd be rushing to declare war, drop a nuke on these guys, go crazy.
Why wouldn't they just turn right around and hand Obama brand-new authorization at this point?
They've failed, as you note in the article, they failed to do so earlier this year.
Well, they're badly divided, and that includes Democrats.
The Democrats want to time-bound, a lot of the Democrats want to time-bound the administration's authority to be able to wage this war, given the fact that, you know, the 2001 authorization for the use of military force is still being relied on, you know, 14 years later.
On the other hand, there are a lot of Republicans, very powerful Republicans, who don't believe the administration has a copacetic strategy, has a real strategy for dealing with this phenomenon known as the Islamic State, and they want to see a much more robust strategy.
A lot of people like John McCain and others want to see actual American combat boots on the ground in the form of special forces, particularly special forces, these guys who are known as forward air controllers, or joint forward air controllers, joint terminal air controllers, the guys who actually call in the airstrikes.
They feel that if they were to be embedded with Iraqi forces, that the airstrikes that are being launched, mostly by American aircraft, but you have the US-led coalition, would be far more effective against the Islamic State than they are at the moment, and at the moment they really are, to a great extent, what are known as targets of opportunity.
The pilot's flying overhead, sees some ISIS positions, and hits them.
So there's been no agreement on that at all, and so Congress is effectively abdicating its own responsibility, because let's not forget that the Constitution that reposes in Congress the power to declare war.
Yeah, well and of course presidents have been getting away with this since Korea, so that's kind of how they do it.
But yeah, no, it's interesting though that in this case they're really just kicking the can down the road.
And you know, with the War Powers Act, it's interesting how, and I'm not accusing you of this, I'm just saying, you know, the kind of popular understanding of that thing is, oh sure, a president can start a war whenever he wants for 60 days.
That's not what it says.
It says he can defend the country from attack for 60 days, until Congress can, you know, come around and authorize it finally.
It's still their responsibility to authorize it.
They have 60 days to do so, or tell them to stop.
Or after 90, they got to come out.
Right, but to start a war, you would need a congressional declaration or at least some kind of pseudo-authorization here.
That's right.
And in this case, Congress is unable to, has been unable to agree on that, and a lot of people are very concerned about what the implications of that are.
Those being that the president is establishing a precedent for expanding presidential powers to be able to wage these kinds of operations overseas.
And that, you know, the fact that, and we know, we don't know, this is the thing, we couldn't learn whether or not there is one of these so-called OLC, Office of Legal Counsel, opinions that goes down deeply and succinctly into the legal case behind the president's claimed powers to be able to do what he's doing in Syria and Iraq.
We don't know that, but the fact is, if there is one, it would, by putting it down on paper, the president would be, in fact, limiting himself, perhaps, to these particular operations against the Islamic State.
Whereas if you don't write it down, you give yourself inherent flexibility to be able to expand those operations to other places.
And as we saw on Saturday night, there was a U.S. airstrike against, in Libya, that was aimed at Mukhtar al-Balmukhtar, you know, a guy who's wanted by the United States for attacks in, I believe it was, Tunisia.
But we don't know at this point whether or not he was actually killed in that strike.
So that's the situation where, if there was a established, written, in-depth, significant legal opinion, that could be used to constrain the president.
Yeah, that's interesting.
And now you talk about in the article at the end here, that Bush had the Office of Legal Counsel write up a memo for him, telling him that he could go ahead and attack Iraq on his own say-so.
And he ended up not going that route, and went ahead and had Congress authorize it, and the UN sort of halfway authorized it.
Well, the UN, I mean, didn't really authorize it, but anyway.
Well, they left the wiggle room in that language for Bush to drive his dump truck through, you know.
In the previous resolutions, but there was no specific Iraq invasion resolution, which they wanted.
No, no, you're right.
But in 1441 it said, or face serious consequences.
There was Bush with his, you know, fighter jets flying through, Mach 3 or whatever.
Anyway, but yeah, they did go to Congress.
But the point being that John Yoo and the boys were telling Bush in 2002, oh, you can go ahead, Mr. President.
You don't need to ask Congress at all.
That's right.
And now, was that on the bogus theory of Mohammed Atta met with Iraqi intelligence in Prague?
Or was that just based on, because you're the president and you say so, Article 2 powers?
Yeah, throwing my addled brain and memory back.
I mean, that is the latter.
That you are the president, you have inherent Article 2 constitutional powers as commander-in-chief.
It's your duty as president to protect U.S. national security, the security of Americans, and so you can go ahead and do basically what you want.
Yeah, at least they listened to Powell on that one, I guess.
Not that it would make that much difference for the poor Iraqis, but anyway.
And now, listen, I'm sorry.
Well, hell, we're just about out of time here, Jonathan.
I was going to ask you, if I could, about this piece about the flagging U.S. strategy.
Would we be better off without a strategy at all at this point than just bombing them to no real definable end here?
Well, it depends where we're talking about.
You know, in Iraq, there doesn't seem to have been, I mean, it helped.
The only place it seems to help the American airstrikes is when they're coordinated with the Kurds.
The Kurds were able to defend Erbil with the help of American airstrikes to prevent the Islamic State from moving on Erbil last year after they took Mosul, and the Kurds were able to drive them back and retake territory.
And the same is happening now on the other side of the border in Syria, where U.S. airstrikes have actually helped the Kurds retake, and I'm just seeing tweets now, it seems to be just happening, the Kurds retake the one border crossing that the Islamic State was using on the border with Turkey to supply its, quote unquote, capital of Raqqa.
And that is a fairly serious setback for the Islamic State.
But when you talk about the rest of Iraq, you know, the airstrikes have not proven to be very effective because we saw the Islamic State overrun the Anbar capital of Ramadi several weeks ago.
And that's in combination, let's not forget, with a equip and train advise program by the American military for Iraqi security forces who don't seem to be profiting very much from that either.
Well, you know, there were reports, and for all I know or remember, probably from you back last summer, that with the American bombing came a giant surge in Islamic State recruitment.
Great.
The Americans are back.
This is exactly what they want.
Yeah.
And we saw, like, last week, there were announcements by some of the Anbar Sunni sheikhs in Anbar that they were, in fact, pledging allegiance to the Islamic State because they still haven't been reconciled with the government, the Shiite dominated government in Baghdad.
And more specifically, they're extremely angry about the use by Baghdad of the so-called popular mobilization units, the Shiite militia that have been trained and funded by Iran.
They have committed atrocities, not on the same scale that the Islamic State, but nevertheless have committed atrocities against Sunnis.
And so basically, Iraq is a mess.
Yeah, man, I'm sorry.
We're just over time, actually, and out of time, because I wanted to ask you all about Syria and the different rebels and the different CIA and military missions training them up and the Nusra and the Islamic State and the Turks and all these things.
But it's just going to have to wait for the next one.
But thanks very much for coming on the show, Jonathan.
It's always good to talk to you.
Anytime.
Anytime.
Yeah.
That's why we ran out of time, was because there's so much to discuss about the legalities there.
That was a good one.
Hey, Al Scott Horton here.
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