Brian and Garrett Fahy

In Charlie Wilson’s War, Congressman Charlie Wilson, who helped arm the Afghanistan mujahedeen in their war against the Soviets, is admonished by his love interest that “if this were a real war,” then he and the country would take several more concrete steps to fight the Soviets. If President Obama was fighting a “real war” against Al Qaeda and its affiliates, his efforts would look considerably different.

War is uncertain, complicated and political. President Obama claims to be none of those. Thus, his military escapades share none of the characteristics of successful wars of past presidents. Where past presidents defined the enemy, rallied support, and then prosecuted the battle until completion, President Obama has taken the opposite approach.

Obama has presided over “Overseas Contingency Operations” in random countries, for random reasons, against targets selected at whim, without defining who we are fighting, why we are fighting, and what victory looks like. President Obama’s approach displays a combination of political calculation, policy incoherence, and disregard of constitutional considerations.

How else to explain Obama’s continuation of much of the Bush era tools of war (preemptive actions, rendition, indefinite detention, drone strikes, military tribunals, black operations) without any concomitant justification for their continuation? If those tools are worthwhile and effective, surely they deserve public commendation and appropriate legislative support. Yet the nation and Congress are treated to silence.

Obama boasts about his restraint and “values” in combating terrorism, but unprincipled incoherence is not a value, or a strategy. Congress actively shaped the prosecution of the War on Terror during the Bush years far more than it has during the Obama presidency. Indeed, the Bush approach was premised upon and then legitimized by explicit Congressional authorization.

Where Congress passed and Bush signed the Authorization for the Use of Military Force (AUMF) in 2001, Detainee Treatment Act of 2005 and Military Commissions Act of 2006, Obama has sought and received no Congressional justification for his overseas directives. What was the legal basis for the Libya intervention? For sending troops to Uganda? Or Somalia? For assisting the French with their Mali operations?

The arbitrary thinking underlying such operations has now been revealed. The Administration’s rationale for the targeted drone killings of terrorists and others – including Americans – named on the “Joint Prioritized Effects List” was revealed in a recent Department of Justice white paper. Most striking (and surprising) is the paper’s assertion that the president bases his anti-terror actions not only on his Commander-in-Chief power, but also on the AUMF, which President Bush signed over a decade ago. Even supporters of the drone program have raised legitimate questions about whether the AUMF provides an adequate legal basis for the program.

More problematic, however, is the extent to which the Administration in the white paper attempts to occupy both sides of the policy debate: granting terrorists constitutional rights, yet permitting administration “officials” to nullify those rights without review or due process. As legal scholar John Yoo observed, “The administration has replaced the clarity of the rules of war with the vague legal balancing tests that govern policemen on the beat…The memo shows that for the first time in the history of American arms, presidential advisers will weigh the due-process rights of enemy combatants on the battlefield against the government's interests, judge an individual's ‘imminent’ threat of violence, and ponder whether capture is feasible before deciding to strike.”

The upshot of this is clear. The Obama administration continues to laud its supposed adherence to the rule of law, while it wantonly kills (treasonous) Americans based on legal regimes erected by the Bush administration before American drones targeted Americans. Further, it uses those regimes to assert legal positions more aggressive and legally dubious than any advocated by the Bush administration.

Until the president squarely defines who we are fighting, how we are fighting, and the legal basis for the fight, confused uncertainty will continue to obscure what should be clear. Yet legal justification and congressional sanction for the assassination of enemy-affiliated Americans like Anwar al-Awlaki is only a concern if terrorists like him represent a clear and present danger to the United States, i.e., an enemy. The president apparently believes the country is confronted with little more than isolated terrorist hotspots requiring a drone strike here or federal prosecution there, and he fights accordingly. The last time such thinking had currency was September 10, 2011.


Brian and Garrett Fahy

Brian and Garrett Fahy are attorneys from Los Angeles who previously worked in the White House and Senate Republican Conference, respectively. They write on national legal and political affairs. They can be reached at BGTownhall@gmail.com.


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