While the federal government had yesterday off, Congress came to life after its long slumber through all things terrorism. In a Senate Judiciary Committee oversight hearing for the Justice Department and an historical filibuster over the nomination of John Brennan to head the CIA, a lot of the controversy discussed dealt with drones--a conversation that desperately needed to be had, and must continue with equal vigor. However, the real elephant in the room is the 2001 Authorization for Use of Military Force (AUMF), which has been used to justify all manner of civil liberty-infringing, extralegal and often unconstitutional conduct and programs since 9/11.
AUMF-creep can be seen in a front-page Washington Post article about "stretching" the AUMF to go after new al-Qaeda offshoots and "associates of associates" who may not be affiliated with al-Qaeda at all.
The AUMF is a single-page joint resolution that Congress passed three days after 9/11, giving the President authority to "use all necessary and appropriate force" against "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." It has been used by the Justice Department's Office of Legal Counsel and federal courts to justify the most horrendous government "counterterrorism" measures, including but not limited to: the invasion and occupation of Iraq, which had nothing to do with 9/11; torture; warrantless wiretapping; Guantanamo detentions; and now the ongoing drone campaigns. And it makes no mention of "associated forces," which according to Jeh Johnson, General Counsel at the Defense Department during Obama's first term, must be both 1) "an organized, armed group that has entered the fight alongside al-Qaeda" and 2) a "co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners"--not just a terrorist group that embraces al-Qaeda ideology.
Even Administration lawyers and U.S. officials are realizing that they have milked the AUMF for all its worth, and I would argue, far beyond its intended purpose and original scope.
It is finally dawning on the government that you can't keep jamming a square peg into a round hole to do anything you want, anytime, anywhere, to any person on the planet. Interestingly, the debate has been driven not by the the diabolical drone program, but by emerging terrorist threats in countries like Libya (e.g., Ansar al-Sharia of Benghazi fame), and Syria (e.g., the al-Nursa Front)--groups that
may embrace aspects of al-Qaeda's agenda, but have no meaningful ties to its crumbling leadership base in Pakistan.Unnamed Administration officials said that names aren't added to the Drone Kill List unless they are eligible under the AUMF and the more elaborate policy criteria set by Obama (the public has never seen the full version of the memo, but has seen a shorter version that recently leaked.) An innocent 16-year-old U.S. citizen, Abdulrahman al-Awlaki, met neither of these criteria.