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I had to stop by the Wax Museum again and give the finger to FDR.
We know Al Qaeda, Zawahiri is supporting the opposition in Syria.
Are we supporting Al Qaeda in Syria?
It's a proud day for America.
And by God, we've kicked Vietnam syndrome once and for all.
Thank you very, very much.
I say it, I say it again.
You've been had.
You've been took.
You've been hoodwinked.
These witnesses are trying to simply deny things that just about everybody else accepts as fact.
He came.
He saw us.
He died.
We ain't killing they army.
We killing them.
We be on CNN like, say our name, man, say it, say it three times.
The meeting of the largest armies in the history of the world.
Then there's going to be an invasion.
All right, you guys.
Introducing John Schwartz from The Intercept, formerly Tiny Revolution.
Follow him on Twitter.
John Schwartz without the T. Hey, man, welcome back to the show.
How you doing?
Well, I'm great and I'm especially happy to talk about this particular issue because I'm amazed that it's flying under the radar like this.
It is incredible that this is going on in Congress and nobody is talking about it.
And you're not even talking about the current confirmation of the torture lady, you know, out of the left side peripheral vision here of mine.
But no, you're talking about this new AUMF.
And so, but wait, I wanted to say, so look, you got this piece.
It's about Donald Trump ordered this serious strike.
And then he said, well, I got a secret legal justification.
And then I forget if, I guess it was Mattis or was it Pence or one of these said, well, you know, the president has the authority to launch strikes because of America, due to American national interest.
That's it.
You know, as determined by him, he can, he's authorized to do this at any time.
So that's a whole article, but we don't have time for that because that's just the premise of the next article.
The cure is worse than the disease.
The bill to restrict Trump's war powers would actually endorse a worldwide war on terror.
And this is about the new AUMF, which includes a thing that actually, I guess, reaffirms or whatever, I'll let you characterize it, makes worse the military detention of American citizens provision from the NDAA of 2012.
Go ahead.
The floor is yours, sir.
Yeah.
Thank you.
Yeah.
It's interesting to remember that it was actually big news back at the very end of 2011 when Barack Obama signed the National Defense Authorization Act, which is something that, you know, happens every year.
Like they pass that every year, but back then they'd added some new language and the language was affirming what presidents, you know, both George Bush and Barack Obama had claimed before, which was that the 2001 authorization to use military force passed, you know, three days after 9-11, that that gave them the authority to detain Americans indefinitely without charges, even if they'd been captured thousands of miles away from any battlefield like happened to Jose Padilla.
And yeah, that is an extraordinary power.
Some courts had agreed that the 2001 authorization to use military force gave presidents the power to do that.
Presidents had claimed it.
But what was significant about the new Defense Authorization Act was that Congress was finally saying like, yes, we agree.
And like basically that means, you know, you have all three branches of the government saying like, oh, yeah, the president can do this.
And, you know, sort of people who supported the National Defense Authorization Act, what they would tell you is, well, you know, nothing about the bill changed what could be done to Americans specifically, like what it was saying was that the president can do this in general.
And there's a little part of the act that says, you know, this doesn't change anything about the president's power to do this to Americans specifically.
But the issue is that, you know, the president had presidents had already claimed that they had that power.
And what the National Defense Authorization Act was saying that, you know, they were Congress is going along with it.
And it also sort of expanded the universe.
Well, now, let me make sure I understand this right, because, you know, there's a difference between theory and practice and doctrine and behavior on the part of the government here.
So, Jose Padilla, that you mentioned there, he's kind of the poster boy for this, right?
American born, American citizen, actual member of Al Qaeda, or at least fellow traveler with these guys.
But then because of tortured evidence out of another guy, Binyam Muhammad was accused of a dirty bomb plot and all of this by the CIA.
And so he was arrested by FBI agents in blue parkas.
That is civilians, not soldiers at O'Hare Airport in Chicago.
And he was arraigned, or I think I forget if it was after the first or after the first arraignment.
I think it was after he was arraigned.
Then he was turned over to Donald Rumsfeld and to George Tenet.
So Donald Rumsfeld held him at the brig down there in South Carolina.
And George Tenet, the director of the Central Intelligence Agency at the time, tortured him.
And they held him lawlessly there for years.
And the Supreme Court ducked the issue once on standing ground.
But on the second time, when it was headed to the Supreme Court, Bush chickened out.
And they went ahead and indicted him and prosecuted him.
And got a ridiculous conviction, by the way, this guy, in federal court where they dropped all their grandiose former claims about him.
So they went ahead and gave him a civilian trial after all.
So the Supreme Court didn't get a chance to strike down what they were doing.
Right?
It deprived them of a ruling on that.
And because, I guess, the Bush guys thought that they would lose on that.
But so, it's complicated.
So help me understand, then, how it is that even the NDAA of 2012, and now you're saying this thing, too.
They don't necessarily say, go ahead and detain Americans.
But they allow it anyway.
Or they imply that whatever claimed power, Padilla doctrine type power, does stand?
Or how does it work?
Yeah, well, it is complicated.
And it's really the kind of thing where the government counts on it being so complicated that no one will really pay attention.
But you're absolutely right.
Like, there's a difference between what's written on a piece of paper and what happens in practice.
And everything you were saying about Padilla is true and important.
The Supreme Court never decided that this was OK.
They never stated that Americans can be held by the military at the president's whim.
A lower court basically did say that before they moved him into the civilian court system.
And what really happened during that period was that there were a lot of high profile cases about this issue.
Like, can presidents detain American citizens?
And the Bush administration and then the Obama administration kind of decided that utilizing this power that they claim to have is more trouble than it was worth.
And so the Obama administration in particular then just started droning people.
Like, people that we might have wanted to capture before, we would just kill them rather than capturing them and holding them forever.
You know, that was the, you know, there were Americans who were killed like Al-Awlaki.
But, so, the fact is, like, that power exists, like that claim power exists even if it hasn't been used very much.
And I think it is true, like, even if this new authorization to use military force was passed tomorrow, it's unlikely that, you know, right this second Donald Trump would start using it to, you know, sweep up Americans and put us in camps.
But the reason why it's so dangerous is that it's sort of a, like, just a time bomb, like, waiting there to go off if there were another big terrorist attack on America, like, if we were at war in some way.
Like, that language is just sitting there waiting for a president to use.
And if there's anything we've learned from the last three presidents is that they will take whatever power they're granted and will run with it.
And it's just crazy, it's crazy to give the executive branch this power.
And, you know, what's particularly troublesome about the new authorization to use military force is, you know, that it doesn't formally affect whatever this power is that presidents claim to, you know, detain American citizens.
But it allows presidents to essentially name new enemies at will.
And so let's say, you know, you're an American journalist, like, this is something that journalists were very worried about after the National Defense Authorization Act was passed, was like, well, like, under a bad president in, you know, scary political times, could I be seen as giving support to a terrorist group just because, like, I talked to them and then published what they said?
Well, you know, probably that wouldn't happen right now.
But again, for people who remember what it was like, you know, 2001 and 2002, it's very easy to imagine a situation where, you know, people would be so scared and you would have a terrible president that journalists like that could be swept up into the military detention system.
It's leaving this power there for any president to use.
And again, like, history just shows that that's nuts.
Like, the people who wrote the Constitution wrote it like that for a reason, which was that they understood history.
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Well, you know, it's interesting the way you say in here about the AUMF in general here, the new AUMF, that Congress feels like, well, geez, they really should be part of this.
And the whole terror war has been kind of on autopilot under presidential authority since 2001.
But then they don't want to take on executive power.
They don't want to just repeal the AUMF and say enough is enough.
So instead, they codify permanent war forever against not just associated forces, but associated forces associated with those associated forces, because those are forces now, since they've been associated.
Everybody knows that.
And so now if you have, what, Lashkar-e-Tayyiba in Kashmir, well, they're friends with the Pakistani Taliban who know the Afghan Taliban.
So why not, man?
How about let's have a war in Kashmir?
Which side should we take?
Yeah.
So it really is, I don't know, it is kind of staggers the mind to imagine that these people who like, like Corker and Cain, you know, I did talk to a lot of people.
I talked to Cain's staff.
They do seem to genuinely believe that, you know, there is a problem with executive power and that this would help.
And it is like, you look at that and sort of what they're doing, and it is hard to understand like where they're getting this from.
Yeah.
Well, and, you know, so I'm not sure how much you know about this.
I don't know enough.
This kind of thing, I guess we probably could use some exact quotes.
I think you refer to this in there somewhere, how Dick Cheney and the original AUMF had sent them, well, I say Cheney, you know, it was Addington and them, but anyway, the language that they sent to the Congress was actually far more expansive.
And Tom Daschle and Dick Gephardt, I think, or Carl Levin, objected and took some stuff out.
And this concerned what?
Their ability to use military force inside the United States, their ability to associate forces at will like this with those who had done the attacks.
So you're thinking about in 2001 or in 2011?
Yeah, right after September 11th, I think, didn't the Senate, the Democratic senators, the recipients of the anthrax letters had said, hey, you know, this AUMF goes a little far.
Yeah.
That is true.
Like as expansive as the 2001 AUMF was, like it was scaled back from what the Bush administration wanted, which was, you know, just essentially authorizations made up the part about associated forces, right?
That's not in there.
You're saying that?
Yeah, that is true.
I mean, the the 2001 authorization to use military force, what it says is that you like the president is authorized to use force against basically anyone who is involved in any way with the 9-11 attacks.
And so, you know, you could have organized them.
You could have supported the people who were doing it.
You could have provided a safe haven for them.
I don't think that's the exact language, but that's the meaning.
And so, yeah, the associated forces stuff, that was new in the 2011 National Defense Authorization Act.
And that that gave them the power to, you know, hold people who are involved with Al Qaeda or the Taliban or associated forces, as you say.
Yeah.
So you make this important point about the strikes against the Syrian government.
No pretension that the AUMF covers that, right?
But there is a legal justification, a memo.
And they've explained, there's a document that says that this memo exists, right?
But it's a secret memo.
And you point out that usually, and they do this, you know, like the torture memos, they're secret because the torture program is secret.
And so the whole thing's classified.
But in this case, it's an overt act, but with a classified justification.
You said that as far as your experts that you consulted said that that was really a first.
Yeah.
I mean, this, what's interesting and terrifying about this is that, as you say, this is totally separate from the whole issue of the 2001 authorization to use military force, the National Defense Authorization Act, like those, that was Congress definitely getting the president to go after people connected in some vague way with 9-11, right?
Okay.
Now, the Syria strike, obviously, again, as you say, had no connection whatsoever to 9-11.
Like Assad, whatever you want to say about him, nobody claims that he was behind that.
And so in this situation, like you would think, the constitution gives the president the power, gives Congress the power to declare war.
Don't you need some kind of congressional authorization?
Well, here they're saying, like, no, we don't need congressional authorization.
The constitution gives the president the power to do this, to just bomb countries at will.
But we're not going to tell you why.
Which is funny, because why did George Bush need authorization after the U.S. was attacked even then, if that's the case?
Anyway, sorry.
Yeah.
No, no.
I mean, obviously, that's a very good question to ask.
The amazing thing about this is that it's not just that this legal justification, this piece of paper saying that it's totally cool for the president to bomb Syria or wherever, like that you and me can't see it.
Like that's, that would be one thing, but even Congress cannot get a hold of this.
And you know, it's because it's paper thin, right?
Because it just says, because he's the president and he's the commander in chief and he says so and Addington lite, because they don't even have anybody that smart to come up with this crap now.
Right?
Yeah.
I mean, that is, that is basically it.
And I mean, you know, they're busted too now for having special operations forces on the ground, not against AQAP, but against their enemies, the Houthis.
The war for Al-Qaeda in Yemen is being waged by Green Berets on the ground in Saudi Arabia right now.
And they had just finished lying to the Senate about that when the Senate was debating whether to invoke the war powers act to make them stop helping the Saudis wage the air war there.
Yeah.
Which that's pretty huge.
I mean, if there's such a thing as a law or any of that stuff, it seems like the pretense is wearing pretty thin.
Yeah, it is.
It is wearing pretty thin and you know, in fairness to the people doing these terrible things right now, you know, I mean, this is a problem that goes back to Harry Truman, you know, waging a gigantic war in Korea, you know, in the 1950s.
That was great.
Were you quote Dick Cheney citing Harry Truman?
Well after Harry Truman did it, we can do whatever we want, right?
And it's just Congress, Congress has totally abdicated what it is supposed to be doing with his congressional powers.
And I think I may have to write something at some point about how this really demonstrates that the guys who wrote the constitution got it wrong because their whole theory was that the people in Congress, you know, would be jealous of their own power and would guard it against the executive branch.
Well, that turns out not to be true at all.
Yeah, no, none of it means taking responsibility.
You know, that's not their job.
Right.
They get a fundraising call to make and a steak dinner to eat.
All right.
Listen, man, I'm sorry.
I got to go.
I'm late.
We got to talk torture with Karen Greenberg next.
Appreciate it.
Okay.
Thanks so much.
Thanks.
That's Jonathan Schwartz, everybody.
He writes a lot of really great stuff.
These three are very important.
Donald Trump ordered the Syria strike based on a secret memo.
The cure is worse than the disease about the AUMF.
And a new bipartisan bill could give the president the power to imprison U.S. citizens in military detention forever.
At TheIntercept.com, Jonathan Schwartz there for you guys, or John Schwartz, I guess now.
All right.
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