Pres. Obama’s Request TO LIMIT His Military-Force Authority

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johnkarls
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Pres. Obama’s Request TO LIMIT His Military-Force Authority

Post by johnkarls »

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On 2/11/2015, President Obama requested Congress TO LIMIT his Authority for Use of Military Force against ISIL (aka ISIS formerly AQI or Al Qaeda in Iraq)!!!

While permitting the American public to believe that he requested Congress TO GRANT him such authority!!!

This deception is readily apparent by comparing President Obama’s 2/11/2015 AUMF Request with the Authorization for Use of Military Force (AUMF) signed into law on 9/18/2001 (a mere 7 days after 9/11) -- hereinafter referred to as “The 9/11 AUMF.”

To avoid confusion, it should be noted that in 2002 there was a separate “AUMF Against Iraq” and President Obama’s 2/11/2015 AUMF Request would repeal “The 2002 AUMF Against Iraq” but would NOT repeal The 9/11 AUMF.

The text of President Obama’s 2/11/2015 AUMF Request was posted under Reference Materials for our 3/11/2015 meeting -- but for the sake of convenience, it is also reproduced below at the end of this essay.

For comparison, the text of The 9/11 AUMF enacted as U.S. Public Law 107-40 which would NOT be repealed by President Obama’s 2/11/2015 AUMF Request =

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The Text of The 9/11 AUMF (U.S. Public Law 107-40 signed into law 9/18/2001)

Preamble

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1 - Short Title

This joint resolution may be cited as the 'Authorization for Use of Military Force'.

Section 2 - Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supersedes any requirement of the War Powers Resolution.
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When The 9/11 AUMF is contrasted with President Obama’s 2/11/2015 AUMF Request, there is readily apparent at least one reason why President Obama has been trying to distinguish between what he terms “Core Al Qaeda” and what he terms “Al Qaeda Affiliates.”

[In addition to his attempt to justify his 2012 re-election claim that “Al Qaeda is on the run.”]

Because if, looking at the language of Sec. 2 of The 9/11 AUMF, the President “determines” that ISIL (formerly Al Qaeda in Iraq) is an “organization” that “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001” then the President already has unlimited authority to use “all necessary and appropriate force…..in order to prevent any future acts of international terrorism against the Unites States”!!!

WITHOUT ANY LIMITATIONS such as time or geography or tactics (such as “boots on the ground”).

HOWEVER, if President Obama persists with his distinction between “Core Al Qaeda” and “Al Qaeda Affiliates” rather than recognizing that they are all part of the same “organization” and he then tries to claim (which he only appears to have implied so far) that they are NOT part of the same “organization,” THEN IN FIGHTING ISIL HE WOULD IMPOSE UPON HIMSELF THE LIMITATIONS CONTAINED IN SEC. 2(c) OF HIS NEW 2/11/2015 AUMF REQUEST = (1) a restriction against using U.S. Armed Forces in “enduring offensive ground combat operations” with no definition for “enduring”; (2) a limitation of 3 years from the date of enactment; and (3) a narrowing of the focus of the War on Terror to “ISIL or any closely-related successor entity” which would exclude all other “Al Qaeda Affiliates” to use the terminology of President Obama’s speeches (since none of the many other already-existing and to-be-formed “Al Qaeda Affiliates” would be a “successor entity” to ISIL).

One might suppose that the new U.S. President in 2017 would have the power under The 9/11 AUMF to make her or his own “determination” of whether “Al Qaeda Affiliates” and “Core Al Qaeda” are part of the same “organization.”

Certainly the language of The 9/11 AUMF could easily be so interpreted by the courts.

Particularly because President Obama’s 2/11/2015 AUMF is NOT repealing The 9/11 AUMF, so a court would conclude that since President Obama is repealing “The 2002 AUMF Against Iraq” but is NOT repealing The 9/11 AUMF, President Obama must have intended that The 9/11 AUMF would have at least some continuing significance.

[Though President Obama’s future partisans presumably would argue that the continuing significance of The 9/11 AUMF should only relate to “Core Al Qaeda.”]

THOUGH IT SHOULD BE NOTED that President Obama has NOT YET made a formal “determination” that “Core Al Qaeda” and “Al Qaeda Affiliates” are NOT part of the same “organization” that “planned, authorized, committed or aided the terrorist attacks that occurred on September 22, 2001.”

Which means that President Obama need only recognize that they are part of the same “organization” and he already has all the authority he needs.

And since under The 9/11 AUMF he has the unfettered power to “determine” that they are part of the same “organization,” he is willfully requesting that his current unlimited authority become limited vis-à-vis enduring ground operations, a 3-year time frame and narrowing the focus to ISIL.

NONETHELESS, it should be remembered that during Candidate Obama’s 2008 campaign, he continually referred to Afghanistan as “the good war” while accusing President Bush of “taking his eye off the ball” in invading Iraq.

AND HERETOFORE, our many discussions have been reaching --

(A) a consensus that the threat of terrorism should be countered by intelligence (both human and electronic) rather than wars or aerial bombing campaigns or probably even Drone Programs -- and that we should probably be discussing (1) how much privacy we are willing to surrender to electronic surveillance in order to prevent 10 million Americans from being nuked, and (2) the extent to which we are willing to engage in “enhanced interrogation techniques” such as those approved by the European Court of Human Rights (to which 47 European countries are subject) in litigation between the United Kingdom and the Irish Republican Army; and

(B) a consensus that America should go to war, if necessary, to prevent Iran from acquiring nuclear weapons since failing to do so will probably result in 50% of the world’s 7 billion population becoming unsustainable virtually overnight.

ACCORDINGLY, regardless of whether Congress accedes to President Obama’s Request TO LIMIT his Military-Force Authority with respect to ISIL (formerly Al Qaeda in Iraq), IT WOULD BE TRAGIC for Congress to take “its eye off the ball” of preventing Iran from acquiring nuclear weapons which, as we have studied many times in the past, will probably result in 50% of the world’s population from becoming unsustainable virtually overnight.

[Because virtually all of the world’s fertilizers come from petrochemicals, 50% of the world’s oil & gas production comes from the Persian Gulf or downwind from the P.G., there are 8 Arab countries (Turkey, Egypt, Saudi Arabia, Kuwait, The U.A.E., Qatar, Bahrain and Oman) that have each announced they will go nuclear as soon as Non-Arab Iran does, and constant threats of nuclear annihilation from Iranian Supreme Leader Ayatollah Ali Khamenei suggest that if Iran acquires nuclear weapons, he will start a nuclear war in no time flat.]

Respectfully submitted,

John S. Karls
JD, Harvard Law School, 1967
Who’s Who in American Law, 1988-2003
Who’s Who in America, 1988-2003
Who’s Who in the World, 1994-2003

[Credentials offered for inspection because of the legal analysis contained in the foregoing essay.]


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Text of President Obama’s 2/11/2015 Request TO LIMIT His Authority To Use Military Force

JOINT RESOLUTION

To authorize the limited use of the United States Armed Forces against the Islamic State of Iraq and the Levant.

Whereas the terrorist organization that has referred to itself as the Islamic State of Iraq and the Levant and various other names (in this resolution referred to as "ISIL") poses a grave threat to the people and territorial integrity of Iraq and Syria, regional stability, and the national security interests of the United States and its allies and partners;

Whereas ISIL holds significant territory in Iraq and Syria and has stated its intention to seize more territory and demonstrated the capability to do so;

Whereas ISIL leaders have stated that they intend to conduct terrorist attacks internationally, including against the United States, its citizens, and interests;

Whereas ISIL has committed despicable acts of violence and mass executions against Muslims, regardless of sect, who do not subscribe to ISIL’s depraved, violent, and oppressive ideology;

Whereas ISIL has threatened genocide and committed vicious acts of violence against religious and ethnic minority groups, including Iraqi Christian, Yezidi, and Turkmen populations;

Whereas ISIL has targeted innocent women and girls with horrific acts of violence, including abduction, enslavement, torture, rape, and forced marriage;

Whereas ISIL is responsible for the deaths of innocent United States citizens, including James Foley, Steven Sotloff, Abdul-Rahman Peter Kassig, and Kayla Mueller;

Whereas the United States is working with regional and global allies and partners to degrade and defeat ISIL, to cut off its funding, to stop the flow of foreign fighters to its ranks, and to support local communities as they reject ISIL;

Whereas the announcement of the anti-ISIL Coalition on September 5, 2014, during the NATO Summit in Wales, stated that ISIL poses a serious threat and should be countered by a broad international coalition;

Whereas the United States calls on its allies and partners, particularly in the Middle East and North Africa that have not already done so to join and participate in the anti-ISIL Coalition;

Whereas the United States has taken military action against ISIL in accordance with its inherent right of individual and collective self-defense;

Whereas President Obama has repeatedly expressed his commitment to working with Congress to pass a bipartisan authorization for the use of military force for the anti-ISIL military campaign; and

Whereas President Obama has made clear that in this campaign it is more effective to use our unique capabilities in support of partners on the ground instead of large-scale deployments of U.S. ground forces: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled, That

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the “Authorization for Use of Military Force against the Islamic State of Iraq and the Levant.”

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION.—The President is authorized, subject to the limitations in subsection (c), to use the Armed Forces of the United States as the President determines to be necessary and appropriate against ISIL or associated persons or forces as defined in section 5.

(b) WAR POWERS RESOLUTION REQUIREMENTS.—

(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with section 8(a)(1) of the War Powers Resolution (50 U.S.C. 1547(a)(1)), Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).

(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution supersedes any requirement of the War Powers Resolution (50 U.S.C. 1541 et seq.).

(c) LIMITATIONS.—

The authority granted in subsection (a) does not authorize the use of the United States Armed Forces in enduring offensive ground combat operations.

SEC. 3. DURATION OF THIS AUTHORIZATION.

This authorization for the use of military force shall terminate three years after the date of the enactment of this joint resolution, unless reauthorized.

SEC. 4. REPORTS.

The President shall report to Congress at least once every six months on specific actions taken pursuant to this authorization.

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.

In this joint resolution, the term "associated persons or forces" means 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.

SEC. 6. REPEAL OF AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ.

The Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107–243; 116 Stat. 1498; 50 U.S.C. 1541 note) is hereby repealed.

solutions
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Amending the 2/11/2015 AUMF Request

Post by solutions »

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In view of John Karls’ foregoing comments, it would appear appropriate for Congress to amend President Obama’s 2/11/2015 AUMF Request by --

Deleting Sections 2(c) and 3, and

Substituting for Section 2(a) the following:

(a) AUTHORIZATION.— The President’s authority to use “all appropriate military force” against, inter alia, “organizations” that “he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” pursuant to Section 2(a) of the Authorization for Use of Military Force signed into law September 18, 2001 (Public Law 107-40; 50 U.S.C. 1541 note) is hereby expanded to include “organizations” that the Senate and House of Representatives determine to have so acted, and the Senate and House of Representatives hereby determine that ISIL (which was formerly known as “Al Qaeda in Iraq”) is part of such an “organization.”


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For the sake of good order, Section 4 of President Obama’s 2/11/2015 AUMF Request should also be deleted because it is redundant to already-existing law --

Section 4 of the 2/11/2015 AUMF Request provides:

“The President shall report to Congress at least once every six months on specific actions taken pursuant to this authorization.”

The already-existing War Powers Act (50 U.S. Code Sections 1541 et seq.) includes Section 1543(c) which would require the President to report vis-à-vis his 2/11/2015 AUMF:

“Whenever United States Armed Forces are introduced into hostilities or into any situation described in [an AUMF] the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.”

This already-existing 50 U.S. Code § 1543(c) covers the point whether or not the 2/11/2015 AUMF Request is otherwise amended.

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