"When the President does it..."
May 22, 2014 • 10:45AM
"When the President does it, that means it is not illegal."
-President Richard Nixon, 'The Nixon Interviews' with David Frost, 1977

Under the headline "Obama Admin. Channels Cheney, Claims Unlimited War Powers," the Daily Beast reports that two Obama Administration lawyers told the Senate Foreign Relations Committee yesterday that Obama doesn't need Congressional authorization to wage war on any terrorists he wants to attack.

At a hearing on "The Authorization for Use of Military Force After Iraq and Afghanistan" (AUMF), Mary McLeod, the State Department's Principal Deputy Legal Advisor, said the President could continue to conduct counter-terrorism operations today even if the present AUMF, issued in 2001, was repealed. According to a transcript of the hearing reviewed by EIR, McLeod was asked by Sen. Bob Corker (R-Tenn.), the senior Republican on the committee, "If the 2001 AUMF was undone, can the President carry out the activities that he's carrying out right now?" McLeod's answer was, "Yes, I believe he could." When Corker said, "So it sounds to me like we're pretty irrelevant to the process from the Administration standpoint," McLeod protested that this wasn't true, because the Administration has "consulted" Congress on its counter-terrorism activities. (Of course, simple "consultation" is not what is required, by either the War Powers Resolution, or the U.S. Constitution.)

Stephen Preston, the Defense Department's General Counsel was more explicit, saying: "I am not aware of any foreign terrorist group that presents a threat against this country that the President lacks authority to defend against, simply because they have not been determined to be an 'associated force' within the AUMF," referring to the language of the 2001 AUMF. If the group "presents a threat of violent attack to this country, the President does have authority to take action — including military action — to protect the country from that threat."

Democrats were also taken aback. Sen. Bob Menendez (D-NJ), the committee chairman, summarized Preston's testimony as "there's no reason why the Administration would oppose the repeal of the 9/11 AUMF totally, because you basically say the President has all the authorities [he needs], notwithstanding the AUMF." When the Administration lawyers declined to say whether the Constitution's Article II powers would allow the President to wage a war against a sovereign state that harbored a terrorist group, without explicit authorization from Congress, Sen. Chris Murphy (D-Conn.) said he was frustrated by the testimony, saying that he would like to have a clear indication that if a sovereign nation does not pose an imminent threat, that the executive would have to come to Congress for authorization to attack that nation.

As the Daily Beast's Eli Lake puts it: "Both McLeod and Preston said that the Constitution's Article II gives the President all the authority he needs to take military action against any threat that he considers to be imminent. This was also the view of David Addington, the chief counsel to Vice President Cheney who argued that the Constitution's inherent wartime powers granted to the President authorized the detention, interrogation, capture and lethal strikes that comprised the war on terror after 9/11."