We've covered how President Obama needs the National Defense Authorization Act (NDAA) to justify detention powers he has used for the past four years, but there's another reason he needs it: drones.
At the heart of both issues is the Authorization for the Use of Military Force (AUMF), which gives the president authority "to use all necessary and appropriate force against those ... [who] aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons."
In May White House counterterrorism adviser John Brennan said drone strikes are justified because the U.S. is "in an armed conflict with al-Qaeda, the Taliban and associated forces, in response to the 9/11 attacks."
But former George W. Bush-era attorney John Bellinger recently declared shenanigans on that claim:
The Obama administration apparently continues to think that they have legal authority under [the AUMF] ... [T]hat it is questionable, because ... 11 years later, it's not at all clear that the drone strikes against ... people in Pakistan or Yemen or Somalia, young men who were in their 20s, who twelve years ago might have been 8 or 9 years old, were in fact part of the same organization that planned 9/11. So, the Obama administration continues to say that they have that authority under congressional authorization, but I think it's a fair question as to whether they really do.
In the lawsuit challenging the NDAA's indefinite detention provisions, both the plaintiffs and Judge Katherine Forrest argued that — despite government claims that NDAA is simply a "reaffirmation" of the AUMF — the NDAA actually extends the president's authority to anyone who provides "substantial support" to the Taliban, al-Qaeda or "associated forces," including "any person who has committed a belligerent act" in the aid of enemy forces.
In her ruling to block the indefinite detention provisions of the NDAA, Judge Forrest said that the indefinite detention provisions appeared to be a retroactive legislative fix "to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly-broad interpretation of the AUMF."
Bruce Afran, a lawyer for the NDAA plaintiffs, tells BI that the same is true for drone strikes because the "use of drones as a generalized weapon [on those] who were only children at the time of the 9/11 attacks would likely go further than any court has previously interpreted the AUMF."
Thus the indefinite detention provisions of the NDAA could be critical to the Obama administration for justifying not only its detention policy, but also its use of drones for extrajudicial killings.
As NDAA plaintiff Tangerine Bolen told BI, the government may have argued that a block of the NDAA would cause "irreparable harm" to the U.S. because it would possibly be "exposing illegal activities for the last decade. It could have a set of ripple consequences: we could see people in the Bush administration, Obama administration and security agencies be investigated for how they have applied the AUMF."
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