Comment on Article (Complete Article below my post; the article is extremely long, so I don’t expect everyone to read the article.)
Barack Obama: “domestic enemy” of and traitor to the United States of America, its Constitution, and Bill of Rights.
by John-Henry Hill, M.D., Ph.D.
LAW Blog: https://johnhenryhill.wordpress.com
Original Posting: May 23, 2016
Updated: May 25, 2016 (in response to a comment by Ken Johnson)
Barack Obama is most certainly a “domestic enemy” of and traitor to the United States of America and its Constitution and Bill of Rights. He has violated the legitimate powers of the Presidency in instances too numerous to count or list here.
What the Founders knew is that the Constitution was a type of “legal TRUST” (a CONTRACT) created by the various sovereign states, for the people as “individual sovereigns” over the states and the U.S.- which did NOT even yet exist. (And one can NOT make a contract with an entity that does NOT yet exist, in this case, the U.S. government.)
The Preamble to the Constitution makes this fact of the Constitution being a TRUST very clear: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” But it was the STATES that ratified (signed) this contract as a contractual TRUST among these states.
As any good attorney knows, in ANY legal TRUST (contract), there are 3 parties: the Grantor (the states), the Trustee (the new U.S. government) who administers the Trust strictly according to the specifications within the Trust contract), and the Beneficiaries (the people; “ourselves and our posterity”). Thus the Grantor(s) (states) are the “boss” of the Trustee; and can take legal action against the Trustee on behalf of the Beneficiaries (people) should the Trustee (U.S. government) violate ANY terms of the Trust contract. This is true of any TRUST contract.
1.) The Constitution of the United States
Article II, Section 1
“Before he enter on the Execution of his Office, he shall take the following OATH or AFFIRMATION:—’I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”’
Look up the terms “SWEAR”, “OATH”, and “AFFIRMATION” in any good law dictionary (Black’s or Bouvier’s) and you will see that they all mean a CONTRACT. Applicable Maxims of Law (which are considered as absolute TRUTH in Law; thus need NOT be proved in any court) : “In law none is credited unless he is sworn.”; “All the facts must, when established by witnesses, be under oath or affirmation.”; “There is no stronger bond between men than an oath.”; “They are perjured, who, preserving the words of an oath, deceive the ears of those who receive it.”; “An oath is a contract in law.”
Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I, Section 8: Contains a listing of ALL the powers granted to Congress (“enumerated power”); it can exercise ONLY those powers listed. The President can ONLY execute the constitutional statutes passed by Congress – he is given NO powers to issue “Executive Orders”, etc; and therefore NO federal agency (he has authority over all) can issue “regulations” which do NOT conform to the statute and intent of the statute (when passed). Most importantly, any legislated act or statute is NOT true”Law” per se. As the Founders, states and people of that time well understood, all legislated acts or statutes are merely “OFFERS TO CONTRACT” – which the states and people may choose to accept or reject. If accepted by the states and the people, such statutes assume the “FORCE OF LAW” with JURISDICTION over only over the states and people within the states that accepted that statute. (Legislated acts or statutes NEVER become “true Law” – the only “True Law” was – and remains today – the Common Law, which supersedes all legislated statutes — so the U.S. Supreme Court has ruled numerous times, even as recently as 1973.)
“The judgment of a court of record [a court operating under the Common Law only; NO statutes allowed] whose jurisdiction is final, is as conclusive on all the world as the judgment of this court [the U.S. Supreme Court] would be. It is as conclusive on this court [the U.S. Supreme Court] as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” U.S. Supreme Court decision in Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218, 255 (1973)]
The ONLY exceptions where federal statutes are required to be followed are: in Washington, D.C. (which technically IS the “United States”), its Territories and Possessions (then the so-called Northwest Territory), and by employees (agents) of the U.S. government working within the several states. Over Washington, DC and Territories and Possessions, Congress has absolute authority under the Constitution.
2.) The Bill of Rights
During the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. One of the many points of contention between Federalists and Anti-Federalists was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did NOT need a bill of rights, because the people and the states kept any powers NOT given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a “bill of rights” that would spell out the immunities of individual citizens.
Relevant to this discussion are: [see Article 1, Section 8]
Amendment IX: “The enumeration in the Constitution, of certain rights, shall NOT be construed to deny or disparage others retained by the PEOPLE.”
Amendment X: “The powers NOT delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the STATES respectively, or to the PEOPLE.”
3.) “Constitution of the United States of America: Analysis and Interpretation” (The “Constitution of the United States of America: Analysis and Interpretation” (popularly known as the “Constitution Annotated”) contains legal analysis and interpretation of the United States Constitution, based primarily on Supreme Court case law. https://www.congress.gov/constitution-annotated
The latest edition of this book is given for free to EVERY member of Congress; and to the President. Before Congress or the President takes any action or assumes any powers, this book is supposed to act as a “reference” to determine if such actions or powers to be assumed are constitutional.
The authors of the article below miss the point entirely: just about EVERYTHING Barack Obama has done (and many Presidents and Congresses before him) were and are UNCONSTITUTIONAL in that they greatly exceeded the powers (“enumerated powers”) granted in the Constitution AND as the Trustee of the legal TRUST (contract) ratified states for the Beneficiaries (the people).
Obviously, over the last 150 plus years very few members of Congress and Presidents have consulted the Constitution, Bill of Rights or this book, “Constitution of the United States of America: Analysis and Interpretation”!
John-Henry Hill, M.D., Ph.D.
LAW Blog: https://johnhenryhill.wordpress.com
May 23, 2016
Added 5/25/2016 in Response to a Most Welcome Comment by Ken Johnson
In reply to Ken Johnson.
Ken, May 25, 2016
Thank you for reading this brief essay on my web site AND for YOUR COMMENT!!!
If you look in any good LAW dictionary (Black’s 4th Edition or earlier OR Bouvier’s from about 1852 or so), you will find that the words “SHALL” and “MUST” in law actually mean “MAY”. – as in you “may” or “may not” choose to obey a legislated act (statute) or any of its offspring (regulations, by-laws, etc.) And the word “REQUIRE” in law actually means “REQUEST”. A CODE is simply a collection of statutes. (These definitions are left out of more “modern” law dictionaries, for obvious political reasons – but those terms were well understood by the Founders and the people in America and Britain from the early 1600’s until about the 1860’s, changing ever so slowly over time. BUT even the U.S. Supreme Court has recently issued rulings affirming the definitions I presented here!!!! (They are just not covered by the mainstream media.) And they most certainly are NOT taught in American law schools!!!!
In short, you are CORRECT.
As I stated in my brief article, legislated acts (statutes) and their offspring are merely “OFFERS TO CONTRACT”, which (as is true for ALL contracts) one may agree to or not agree to. The “catch” is that the states and U.S. government (especially the courts) make the PRESUMPTION that you have AGREED to their contract (statute), thereby giving them JURISDICTION over you. And the ancient Maxims of Law still applies today: “A presumption NOT rebutted stands as the Truth.” and “Silence is consent.” After I learned all this stuff for my Ph.D. in the political history of British and American law, I NEVER went to go court without submitting to the court a written, notarized AFFIDAVIT (submitted in-person to the Clerk of the Court, who stamps 2 copies – 1 for the judge and my own copy; the Clerk of the Court MUST accept it if you write on it “Submitted on Demand”) rebutting all such presumptions by the court, along with a list of MY definitions to be used in the case. In the affidavit, I give the court seven (7) days to respond – and if it does NOT respond within those 7 days, then BY DEFAULT the court has agreed with me and accepted everything in my affidavit as the truth in the law of the case. Maxims of Law: “An unrebutted affidavit stands as the truth in Law.” and “He, who does not object, consents.”
(It is easy to do: only the first page of the affidavit gets changed in a few places. The rest, such as Maxims of Law, my definitions, etc., stay the same.) The court will almost NEVER respond with a rebuttal of my affidavit within those 7 days, it has AGREED to everything in my affidavit – so it (the state and the judge) have LOST by default. IF I decide to appear in court (which is almost NEVER), I have a notarized, stamped-by-the-Court-Clerk, copy of this affidavit. The judge can NOT ignore it, for he will be subject to criminal and civil actions if he does so. Further, I can turn this affidavit into an “International Commercial Lien” (explained in another article on my web site) thereby “freezing” ALL his current and future assets for 99 years (or forever if I place it in a trust). And if I register this Lien with the U.S. Securities and Exchange Commission (SEC), it becomes a “negotiable instrument” which I can sell to any investor, investment bank, etc. Since my Liens are typically for $50 Million and a buyer will usually offer between 1-2% of this nominal value, that means I just made $500,000 to $1 Million tax-free dollars. And NO COURT in the world can over-turn this Lien, since it is created by a non-judicial process in which there was NO controversy (recall that, by not responding with his own “notarized affidavit of rebuttal”, the judge has ALREADY AGREED with everything in my original affidavit) – and where there is NO controversy, NO court may assume jurisdiction!!! And if one does appear in court, let your DOCUMENTS do all the “talking” – NEVER say anything more! If pressed by the judge to “explain” something, just say, “It is ALL explained in the documents submitted, so I have absolutely nothing to add.” And do NOT swear any OATH in court, since that negates your documents and gives the judge jurisdiction over you. Remember the Maxim of Law, “An oath is a contract in law.” And at this point, you do NOT want to create a new contract with the court by swearing an oath!
Do NOT expect lawyers (except for International Commercial Lien specialists) or lower-court judges to know this stuff, since it is never taught in U.S. law schools. But a judge on the Appeals Court level will often know about it; and most definitely a judge on a state or federal supreme court. Lastly, if ANYONE tries to interfere with this Lien, that person may be easily added to the Lien by simply writing his name, title, address and brief description of what he did onto the back of the Lien – so ALL his assets get “frozen” also and he then also owes me $50 Million!!!
One can “beat the system” IF one knows the system – and then use the system against “the powers that be”. I have used “International Commercial Liens” on 6 people (all U.S. officials); and won EVERY time! (This is in another article on this web site about “DONUTS, etc”.) And I NEVER paid for any out-of-state traffic ticket, parking ticket, etc – only those in Massachusetts because my drivers license was a CONTRACT with the state.
By the way, I now live most of the year in Ukraine or Crimea – so I no longer have to deal with courts in the U.S.
After the ratification of the original (“organic”) “The Constitution for the united States of America”, written in plain English for all to understand, the courts, Congress and people accepted as FACTS OF LAW that the people as individuals were the sovereigns of the Union states, the various states were viewed as separate “foreign countries with respect to each other and with respect the United States”; and most almost all legislated acts (statutes; from which regulations were written) applied ONLY to employees and agents of the U.S. government. The Congress had jurisdiction only over Washington City, as the seat of the federal government, federal Territories, federal forts and naval stations within a state; and federal buildings within a state, usually federal Post offices. Federal statutes applied to people living in one of the sovereign states ONLY if that individual man CONSENTED to that particular statute. The federal courts existed solely to settle disputes between states; and disputes between people from two different states.
..at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…with none to govern but themselves….. [CHISHOLM v. GEORGIA (US) 2 Dall 419, 454, 1 L Ed 440, 455 @DALL (1793) pp471-472.]
“There is no such thing as a power of inherent sovereignty in the government of the United States …. In this country sovereignty resides in the people, and Congress can exercise no power which they have not, by their Constitution entrusted to it: All else is withheld.” — Julliard v. Greenman, 110 U.S. 421..
The people of this State, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the King by his prerogative. [Lansing v. Smith, 4 Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]
“It will be admitted on all hands that with the exception of the powers granted to the states and the federal government, through the Constitutions, the people of the several states are unconditionally sovereign within their respective states.“ ~ Ohio L. Ins. & T. Co. v. Debolt, 16 How. 416, 14 L.Ed. 997 (1854)
“Our government is founded upon compact [contract]. Sovereignty was, and is, in the people“ — Glass v. Sloop Betsey, U.S. Supreme Court, 1794.
Even Alexander Hamilton (1st Secretary of the Treasury under President George Washington) and one of the most ardent advocates for a strong central government wrote, “Necessity and expediency are NOT legitimate excuses for violating the Constitution you swore to uphold and protect – even during a ‘crisis’“.
“The Constitution for the united States of America”, written in plain English for all to understand, the courts, Congress and people accepted as FACTS OF LAW that the people as individuals were the sovereigns of the Union states, “the various states are separate foreign countries with respect to each other and with respect the United States” (from various U.S. Supreme Court rulings)
(It is extremely long, so I don’t expect everyone to read it.)
Mission not quite accomplished: Obama’s antiterrorism legacy
May 23, 2016
Three years ago today, Barack Obama gave a major counterterrorism address at the National Defense University at Fort McNair in Washington, D.C. It was what his aides call a “framing” speech, an effort to knit together an overarching approach to the fight against radical terrorists. Predictably, Obama touted his administration’s key successes. Osama bin Laden was dead, the core al-Qaida organization in Pakistan was “on a path to defeat,” and there had been no “large-scale” terror attacks on U.S. soil since he had taken office.
And he stoutly defended some his own most controversial actions, such as the incineration-by-drone of Anwar al-Awlaki, the American-born preacher and chief of external operations for the Yemeni offshoot of al-Qaida. “His citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected by a SWAT team,” Obama averred.
But the speech, many months in the works, was also an unusual public expression of Obama’s private angst about the American killing machine he had built and was now presiding over. He hadn’t run for office so that he could “go around blowing things up,” he’d told his national security team, according to an account in the New Yorker.
He gave his audience an extraordinary glimpse into how he weighs the tradeoffs between security, morality and law, confessing his own personal anguish upon learning that strikes he had ordered killed civilians. (“For me, and those in my chain of command, those deaths will haunt us for as long as we live,” he said.)
He rededicated himself to closing the Guantanamo Bay detention facility, an effort that had collapsed amid congressional obstruction, political realities and Obama’s own laconic approach toward Congress.
Most strikingly, Obama mused openly for the first time in his presidency about how to move the country off a perpetual wartime footing. “This war, like all wars, must end,” Obama said. “That’s what history advises. It’s what our democracy demands.”
To that purpose, he announced a series of new polices (a Presidential Policy Guidance in the bureaucratic vernacular) that would narrow the scope of the American struggle against terrorism, create more stringent rules for the use of lethal force and generally impose more accountability and transparency on a killing process that had operated almost entirely in the shadows.
Obama issued directives reining in the use of drones outside conventional battlefields and tightening the criteria for targeted killings. To circumscribe what many critics saw as a war that had become boundless in time and geography, Obama vowed to work with Congress to “refine and ultimately repeal” the Authorization for Use of Military force, the Congressional writ that gave the American president sweeping powers in the immediate aftermath of 9/11.
And he urged a more nuanced approach to identifying those terrorist groups that required a military response from the United States. Not every band of extremists involved in local insurgencies poses a threat to our national existence or way of life, he suggested.
Obama located the country at a crossroads and declared that it was time to “define the nature and scope of the struggle, or it will define us.” Implicitly, he was saying that we had to regain our perspective and not overreact to a threat that was actually receding. For 12 years politicians and security officials had warned against a pre-9/11 mentality of complacency. Obama was pointing out the complementary danger of being stuck in a post-9/11 mindset of overreaction to a threat that seemed to be receding.
But now the battlefield assessments are more dire and the threat is metastasizing. A raging civil war in Syria paved the way for the emergence of ISIS, which captured huge swaths of territory in Iraq and Syria and declared a caliphate. The group shocked the world by beheading American and other Western hostages. It demonstrated an ability to pull off large-scale attacks in the heart of Europe and to inspire plots like the one in San Bernardino, Calif., that left 14 dead. Fear of Islamist terrorism was spiking in American cities and pulsating through the 2016 presidential campaign.
Talk of winding down the terror wars has been dropped from the Obama administration’s message. Instead, the administration has been pouring thousands of new troops back into the Middle East, and his aides were looking for a new vocabulary to describe a strategy that more closely resembled the approach of the previous decade than the forward-looking agenda Obama had laid out at Fort McNair.
Ben Rhodes, the deputy national security adviser and close adviser to Obama, described a hybrid strategy comprising many elements, which together do not add up to a traditional war. “We have a variety of different tools that we use that range from a drone strike to an airstrike to a training exercise to law enforcement cooperation to try to deal with that terrorist threat,” Rhodes said in an interview. Likening the strategy to “Plan Colombia,” the 1990s-era U.S. initiative to combat Colombian drug cartels and leftist insurgents, Rhodes said that the U.S. has assumed “a counterterrorism posture that resembles less a war than a mix of counterterrorism efforts and military support to countries that are dealing with fractured states and civil conflicts.”
But the reality is that a president whose ambition had been to wind down and ultimately end the wars of 9/11 has found it hard to resist the inexorable momentum toward more military engagement.
Obama has been accused in the past of failing to follow up his lofty rhetoric with resolute action, of attempting to bend the arc of history with mere eloquence. The truth is more complicated. Circumstances have changed, making some promises harder to fulfill. In some areas progress has been made, but it is often slow and plodding. We are not reverting back to a post-9/11 formula, occupying countries with large standing armies and twisting our foreign policy to fit that paradigm.
In the twilight of his presidency, it’s reasonable to start asking what Obama’s record on terrorism will look like when he departs — and what he will leave behind to his successor, both in terms of the nature of the terror threat and the tools available to deal with it. What follows is an assessment of Obama’s accomplishments and where he’s fallen short, measured by the yardstick of his own words.
Even before he became president, Obama had identified drones as his go-to weapon. During the transition, he and John Brennan, soon to be his counterterrorism adviser and later director of the CIA, agreed that the surgical capabilities of drones served Obama’s larger strategic goals in the fight against terrorism: taking the bad guys off the battlefield and thwarting attacks, while shrinking America’s footprint in the region. Likening terrorism to a cancer, Brennan said “you need to target the metastasizing disease without destroying the surrounding tissue.” The weapon of choice: armed pilotless aircraft, or drones
But Obama’s very first experience with a drone strike rattled him. Four days into his presidency, the CIA was targeting al-Qaida and Taliban commanders in South Waziristan along the Afghan-Pakistan border. But the strike went badly awry, killing an innocent tribal elder and several members of his family.
It was the start of a pattern that has run through his entire presidency. Intellectually, Obama was able to make an ironclad case for the utility of drones, from both a moral and tactical standpoint. As commander in chief he could not stand by idly when the intelligence indicated terrorists were plotting to kill Americans. The precision of drones, he was convinced, would minimize civilian casualties compared to conventional airstrikes or ground combat, without risking American lives. And yet deadly mistakes continued, innocents were killed, and Obama always seemed to have a nagging feeling that he couldn’t fully control this controversial program that was so closely identified with him personally.
The deadly efficiency of the program made it hard to resist. During the first couple of years of the administration, the Obama White House sometimes seemed almost giddy about the CIA’s successes. Rahm Emanuel, the president’s first chief of staff, was the program’s biggest cheerleader, regularly calling then-CIA Director Leon Panetta to congratulate him for major strikes. He even urged the agency to tout its successes in the media by leaking colorful details of the covert hits to friendly reporters.
But ironically, one of the strikes that Emanuel celebrated was also a turning point for the program. Baitullah Mehsud was a senior leader of the Pakistani Taliban and one of the most bloodthirsty terrorists on the CIA’s kill list. In the summer of 2009, agency spotters had Mehsud in their sights. But they couldn’t guarantee a clean shot. He would likely be surrounded by civilians. With the White House’s blessing, the strike was made. Mehsud was killed, but so was his wife, who was massaging his legs at the time.
The strike was viewed by its “operators” as a major victory in the war on terror. But the unintended casualties gave pause to some in the White House, including Obama. In the aftermath of the Baitullah strike and others that had gone badly, the program was put through a “hot washing,” according to a knowledgeable source, using a military term for a rigorous performance review.
Other factors heightened concerns over the targeted killing program. The Pakistani government, a critical ally in the war against al-Qaida, was threatening to withdraw cooperation because the strikes were so unpopular there. The American ambassador in Pakistan, backed by Secretary of State Hillary Clinton, called for scaling back the program and requested more input in authorizing the strikes.
In response, the White House began developing standards for drone strikes outside conventional battlefields. Obama wanted to institutionalize rules for using these deadly weapons, both for his administration and for future presidents. The new standards could also serve as a blueprint for international norms for drone warfare as the technology became available to other armies.
The project, informally called the “playbook” and run by Brennan, resulted in a Presidential Planning Guidance, which Obama announced at the Fort McNair speech. It was an effort to make sure “we had a rigorous process for figuring out who was worth taking a shot at,” said a one senior Obama adviser.
The PPG, a classified document, limits drone strikes to human targets who cannot be captured and who pose a “continuing imminent threat” to Americans. Moreover, under the policy guidance, such drone strikes can only be authorized when there is “near certainty” that no civilians will be killed. (The imminence standard has been criticized by human rights lawyers because of the administration’s elastic definition of imminence. Obama officials have argued that that it would be too late to take action once terrorists were executing an operation.)
Obama also proposed in the PPG new mechanisms for increasing oversight of drone operations outside of war zones. He pledged to work with Congress to develop a special court that would evaluate “lethal action,” although he warned that bringing the judiciary into the process might pose constitutional problems. He also raised the possibility of establishing an “independent oversight board” within the executive branch to oversee drone strikes.
One key reform he did not announce at the National Defense University speech, but rather set in motion secretly, was shifting drone operations away from the CIA to the Pentagon, which is subject to more accountability and transparency.
Three years later, how well has Obama lived up to these goals? It’s a mixed picture, although some progress has clearly been made.
Since 2013, the number of drone strikes outside of conventional war zones has fallen dramatically. At the peak in 2010, there were more than 122 fired in Pakistan, according to the New America foundation. In 2013 there were 26; in 2014 there were 22; and so far this year there have only been 2. Less drastic, but still substantial, decreases have also occurred in Yemen and in Somalia.
This is partly due to changing circumstances; in Pakistan, after a decade of pounding al-Qaida and the Taliban, there are very few targets left to hit. “They are either dead, have left the region, or are so burrowed in they can’t be targeted,” said one former intelligence official with deep knowledge of the drone program. But just on Saturday, the leader of the Afghan Taliban, Mullah Akhtar Mohammad Mansour, was targeted by a drone strike along the Pakistan-Afghanistan border, according to the Afghan government, killed along with an associate.
What impact the more rigorous standards imposed on the drone program by the PPG have had on the pace and efficacy of targeted killings is less clear. For one thing those standards do not apply in Pakistan at this point.
Obama’s pledge to consider a secret court or an independent board to oversee the drone program has gone nowhere. Both of those options, according to a senior administration official, have been shelved.
Moving the program from the CIA to the Defense Department has proven to be slow and difficult. The agency, unsurprisingly, resisted giving up a program that was a boon to its reputation. But a bigger obstacle was the intense turf war waged out of public view between the congressional oversight committees for intelligence and defense. “The intel committees fought viciously to keep the program,” said one top administration official.
Moreover, real questions emerged about whether the Pentagon had the technical know-how to take over exclusive control over the drone program. In 2014 a Defense Department drone strike in Southern Yemen accidentally killed a number of civilians attending a wedding party, provoking a debate within the government about the wisdom of turning the program over to the military. The CIA seized on the accident to argue for keeping a major role in choosing targets.
There is some evidence that the military has assumed command of the program in at least one theater of war. Lately, the Defense Department has been willing to publicly take credit for drone strikes in Yemen. When both the CIA and Yemen were operating parallel programs there, the military could not reveal its operations, because on those occasions when it did not take the shot, keeping silent would have implicitly exposed the CIA’s role. A senior administration official predicted to Yahoo News in a recent interview that by the time Obama leaves office, the program will have fully shifted over to the military, with the exception of operations in Pakistan. That’s because the Pakistani government will only allow the U.S. to operate there covertly, which only the CIA can do. Elsewhere, the CIA, with its unique expertise, will continue to gather and analyze the intelligence needed to target terrorists. The military will track the bad guys and then pull the trigger.
Administration officials cite the drone killing of Junaid Hussain, a top ISIS propagandist and computer hacker, as a model for the kind of “dual command” structure that could be used going forward. Barack Obama shed no tears over that operation.
The world was different enough in May 2013 that Obama could plausibly promise that he would try “to refine, and ultimately repeal” the 2001 legislation that set the stage for the invasion of Afghanistan and the global war against al-Qaida. He could tell Americans that, with some work at both ends of Pennsylvania Avenue, “we can continue to fight terrorism without keeping America on a perpetual wartime footing.” His administration later called for repealing the October 2002 Authorization for Use of Military Force that gave George W. Bush the green light to invade Iraq — a step loaded with significance for Obama, who built his history-making 2008 campaign on a vow to disentangle a weary America from the Middle East.
Top Obama aides and their allies in Congress now acknowledge that the job of rewriting the legislation that underpins the war on terrorism will almost certainly fall to the next administration. “I do think any future president is going to need to figure this out,” Rhodes told Yahoo News.
Obama has now spent more time at war than any other U.S. president. His unwillingness to use force is frequently exaggerated both by aides eager to portray him as the solution to Bush-era problems and by critics eager to cast him as a weak defender of U.S. national interests. In 2008, he promised to kill bin Laden if he got the chance — even if the terrorist mastermind were on sovereign Pakistani soil. In May 2011, he kept that promise. In his 2009 Nobel Peace Prize acceptance speech, Obama talked of constraining war but bluntly vowed: “I — like any head of state — reserve the right to act unilaterally if necessary to defend my nation.” He became the first American president known to have targeted an individual American citizen, al-Awlaki, for assassination. His decision not to strike Syria in 2013 has drawn sharp criticism, but many of his fiercest critics (and the U.S. public) also opposed using force at the time. He hurled U.S. forces into combat in Libya without congressional authorization (and without a plan for filling the vacuum left by Moammar Gadhafi). And in his 2015 campaign to sell his nuclear agreement with Iran, Obama freely boasted of ordering the use of deadly force in at least seven countries — overtly, covertly, deploying troops, ordering drone strikes, acting with or without congressional authority, with allies or unilaterally, and sometimes in ways that test the bounds of international law.
But the 2013 speech came at a time when the president hoped to escape being pulled into Syria’s civil war, two months before the so-called Islamic State terrorist army launched its campaign to seize vast swathes of Iraqi territory. He was speaking nearly one year before U.S. officials warned that terrorist groups inside Syria were plotting attacks on the West, fundamentally altering Obama’s view of that conflict. ISIS, as the Islamic State is also known, essentially rewrote the president’s strategy.
At the time of the National Defense University speech, White House aides thought they saw a window for curtailing executive war-making authority under the 2001 AUMF. Congress, in this scenario, would take a more assertive role in defining the proper means and the ends before young Americans charge into battle. Obama’s team also contended that the 2001 measure, designed to target al-Qaida, was increasingly out of date — an argument they still make.
“You could foresee a scenario in several years where al-Qaida, the organization that launched the 9-11 attacks and which we created an AUMF for, really doesn’t exist anymore; it’s fully out of business,” Rhodes said.
“So are you still using an authority crafted for an organization based in Afghanistan in 2001 to fight an organization that’s based in Somalia and Mali and Yemen in 2019? To us that, at a certain point, becomes unsustainable,” Rhodes said.
In February 2015, Obama sent Congress a new AUMF, explicitly authorizing his undeclared but escalating military campaign against ISIS (or, to the administration, ISIL) and pressed Congress to start the work of refining, and repealing, the 2001 law.
But the new measure has stalled, perhaps for good. While the administration could still send Congress proposed changes to the 2001 AUMF, the White House insists a new measure, aimed at ISIS, has to be in place before it can risk losing the authority it claims to have under the older resolution.
“We do believe that we still need to have the authority to degrade and ultimately destroy ISIL, and, where necessary, continue to apply pressure to al-Qaida affiliates around the globe,” White House press secretary Josh Earnest said in April.
But “I can’t really conceive of rolling back [the 2001 AUMF] unless we have a replacement, whatever it looks like, on the books,” a former career national security official who used to advise Obama told Yahoo News on condition of anonymity.
For Rhodes, this president or a successor will have to embrace a new legal framework.
“I think it will become increasingly unsustainable to be relying on an authority crafted for a place and time, an organization that really doesn’t exist anymore,” he said.
Either way, the United States seems set to remain on the “perpetual wartime footing” that Obama declared he wanted to end.
When Obama ordered the closure of the Guantanamo detention center on his third day in office, there were 241 detainees at the facility, down from a total of about 800 when George W. Bush opened the prison after 9/11. By early 2013, the start of his second term, that number had dropped by only about a third, to 166.
As of this February, it was down to 91, and today there are 80 detainees remaining at the prison. That number will decrease even more over the next few months. But when Obama leaves office on Jan. 20, 2017, Gitmo, as it is known, will almost certainly still be open for business, leaving one of the president’s signature campaign promises unfulfilled.
There is plenty of blame to go around for this. Early in Obama’s first term, efforts to shutter Guantanamo were overwhelmed by the politics of terrorism.
In May 2009, Democratic House Appropriations Committee Chairman Dave Obey stripped $80 million that Obama had requested to close the prison from an emergency funding bill. “While I don’t mind defending a concrete program, I’m not much interested in wasting my energy defending a theoretical program,” Obey said at the time. “So when they have a plan, they’re welcome to come back and talk to us about it.“
Republican hardliners (with not a few Democrats going along) seized on the issue to try to make Obama look weak on national security. The Obama administration provided all the ammo Republicans needed with its clumsy and ill-fated plan to transfer a handful of forlorn Chinese Uighur prisoners to a Northern Virginia suburb, touching off a full-blown NIMBY (not in my backyard) rebellion in Congress.
The Obama team members seriously underestimated how difficult a task they had assigned to themselves. “There was kind of this naiveté that somehow, if the president said we’re going to close Guantanamo, and we have a plan to close Guantanamo, that ultimately that would happen,” recalled former CIA Director Panetta.
Matthew Olsen, the Justice Department official tasked with determining which prisoners could be transferred from Gitmo and which were too dangerous to release or send to trial, learned this at his first White House meeting on the matter. When he remarked in a Situation Room meeting that this would be an arduous process, a senior White House official impatiently responded: “What’s so hard? Just do one and then multiply by 240.”
Panetta also lays some of the blame directly at the president’s feet for not personally (and relentlessly) engaging Congress on the Gitmo issue. It’s important to remember that early in his presidency, Obama had to hoard his political capital for dealing with the economic crisis while moving ahead with health care reform. Nevertheless, according to Panetta, Obama was unwilling to do the hard, often frustrating, work of engaging Congress to bring it along. “Sometimes he is offended when the political process doesn’t keep up with what he’s trying to do,” Panetta observed in a recent interview, adding that he often urged Obama to invite key members of Congress to the White House for briefings or cocktails, but the president resisted. “In the end you have to be able to engage in that process to be able to build . . . their support for the things you’re trying to do in protecting the country.”
Toward the end of Obama’s first term, the GOP-led Congress had passed legislation barring the use of congressionally appropriated funds to transfer detainees to the U.S. homeland. That meant the 48 detainees that the Obama administration had determined could not be prosecuted for legal reasons and were too dangerous to transfer to other countries or release were stuck at Gitmo. And so was Obama’s policy. He seemed to have given up. He didn’t even have a single official at the White House or any of the relevant agencies assigned to lead the flagging project.
In the spring of 2013, around the time of Obama’s Fort McNair speech, the majority of detainees, more than 100, went on a hunger strike, and as many as 45 had to be force-fed. Gitmo seemed to tug once again at Obama’s conscience. He reinvigorated the effort to get it closed, appointing special representatives at both the State and Defense departments and personally dug into the bureaucracy to prod the time-servers and foot-draggers. The administration accelerated the pace of transfers in a meaningful way, including the use of Periodic Review Boards (PRBs), which allowed the 48 prisoners being held indefinitely to challenge their detention.
This February the administration announced a new plan to close the facility. The problem is, it depends on the Republican-led Congress lifting its ban on transfers to the homeland, something few expect will happen.
Administration officials talk about a “Plan B” should their public plan fail. Some have hinted at the possibility of Obama taking executive action to overcome the congressional ban on transfers to the U.S. While administration allies have argued that choosing where to house detainees captured in a war setting is a “tactical” military decision within the constitutional powers of the commander in chief, many in Congress would view such a move as a naked power grab. It would likely invite comparisons to the controversial legal opinions developed during the Bush administration to justify the use of torture and illegal surveillance. “Obama’s arguments for disregarding the Gitmo restrictions is the same argument the Bush administration used to avoid the torture ban; namely, that Congress cannot restrict the president’s “tactical” decisions as commander in chief,” says Jack Goldsmith, a Harvard law professor and the Justice Department official who withdrew the Bush administration’s opinions on torture and surveillance.
There are creative solutions to solving the Gitmo riddle, including one being circulated by Ken Gude, a senior fellow at the liberal Center for American Progress, who is close to the Obama administration. Under the plan, the administration would continue moving out those who could be transferred, designate a handful of detainees who have violated the laws of other nations for third-party prosecutions and accelerate the Periodic Review Board process. That would still leave about 32 detainees in the camp, including 22 low-level members of al-Qaida and the Taliban. But Gude has a plan for them. He argues that they are no different from the al-Qaida and Taliban foot soldiers whom the U.S. military imprisoned on its base in Bagram, Afghanistan. Once we relinquished Bagram to the Afghans, we turned over those detainees to the sovereign Afghan government. There is no substantive difference between the Bagram prisoners and those being held at Gitmo, Gude argues, so we should turn over those being held at Gitmo to the Afghans. Gude says this would leave only the handful of detainees who are awaiting prosecution in the military justice system, effectively turning Guantanamo into a trial venue rather than a prison camp.
But even Gude sees the scenario as a long shot. Perhaps the administration’s best bet for seeing the camp shuttered is the election of Hillary Clinton as president. As Obama’s secretary of state, Clinton pushed repeatedly for aggressive action to close the military prison. As she was leaving office, she even sent a sharply worded memo the White House chiding Obama’s advisers for failing to do so
For his part, Donald Trump has said he would keep Guantanamo open and “load it up with some bad dudes.” Oh, and he also says he would get Cuba to pay for it.
“After nearly nine years, our war in Iraq ends this month.” That was Obama’s confident message on Dec. 12, 2011, as he proclaimed the fulfillment of his defining 2008 campaign promise to bring American forces home.
Roughly 4 1/2 years later, the president is on track to hand his successor an undeclared but open-ended and escalating war against the Islamic State, with some 5,000 Americans in harm’s way in Iraq and about 500 U.S. special operators in the slaughterhouse that is Syria.
It will be up to the next commander-in-chief to fulfill Obama’s promise to “degrade and destroy” ISIS. Someone will inherit a whole new “our war in Iraq,” as well as the catastrophic Syrian civil war.
Obama’s policy toward Syria and Iraq — and ISIS — has changed along with his evolving sense of threats to U.S. interests. He initially resisted getting involved, started to recalibrate in early 2014 when senior intelligence officials warned that extremists were taking advantage of the chaos to plot attacks on the United States and its allies, sent a first contingent of ground troops to Iraq in June 2014, unleashed airstrikes on ISIS in Iraq in August 2014, and expanded them to Syria in the following month.
Through it all, he has been dogged by criticisms that he was caught flat-footed by the rise of the terrorist group.
“It struck me that I did not see anything that indicated that there was concern about ISIS developing,” Panetta, who served Obama as defense secretary until February 2013, told Yahoo News. “At least from my perspective, it sounds like that somehow the ball was dropped.”
Obama aides dispute that they ever lost track of the threat posed by ISIS, which grew out of al-Qaida in Iraq, formally renamed itself the Islamic State in Iraq and Syria in April 2013, and proclaimed its caliphate in June 2014.
“I did not believe that there was an intelligence failure as it relates to the fact that al-Qaida in Iraq was moving over the border to Syria and they were morphing into something quite dangerous,” Rhodes told Yahoo News. On the other hand, he added, “We did not anticipate, and really I don’t think anybody did, the extent to which the Iraqi security forces would collapse in the face of that. There was no warning of that.”
However, some of Obama’s sharpest critics have directly tied the deadly chaos that fed the rise of ISIS to the president’s decision to withdraw all U.S. forces from Iraq in late 2011.
“President Obama cannot avoid his share of responsibility for the rise of the Islamic State of Iraq and Syria,” Republican Senators John McCain and Lindsey Graham wrote in Sept. 2014.
Obama launched his war against ISIS one month before McCain and Graham’s column. As of April 15, this year, the total cost of military operations was about $7.2 billion, with a daily bill of $11.7 million, according to the Defense Department. As of April 12, the United States and its coalition partners had conducted a total 11,539 strikes — 7,794 in Iraq and 3,745 in Syria. The United States accounted for 8,825 of those in Iraq and 3,518 in Syria. There have been three U.S. combat casualties.
The White House insists that American forces don’t have a combat mission and has ruled out “enduring offensive ground combat operations,” a description that chief Obama spokesman Josh Earnest once described as “intentionally” fuzzy. Asked recently at what point in time American special operators sent to Syria late last year would meet the definition, Earnest suggested that they never would because their numbers are far short of the tens of thousands who invaded Iraq in March 2003.
The war on ISIS has largely proceeded on three fronts: Retaking territory the group captured in Iraq and Syria, preventing terrorist attacks either inspired or directed by the Islamic State against the United States and U.S. allies and taking aim at the group’s adherents and allies in other countries, like Libya.
As for the “destroy” part of “degrade and destroy,” top Obama aides can sketch out the contours of the victory they hope their successor will achieve.
“What it looks like is, do they [ISIS] have a safe haven from which they can plot, free of pressure, or free of enough pressure, so that they can plot, plan, and execute” attacks against the United States, Obama’s homeland security adviser, Lisa Monaco, told Yahoo News in a recent interview.
Asked how he would define victory against ISIS, Rhodes told Yahoo News: “I would define it as ISIL no longer being able to control territory from which it can project terrorist attacks against the United States, our allies and partners.”
Victory won’t be “eradicating every ISIL sympathizer and member off the face of the earth,” Rhodes said.
The night of the 9/11 attacks, with the rubble of the World Trade Center and a shattered side of the Pentagon still smoldering, then-President George W. Bush declared a “war against terrorism.” Two weeks later, he promised that “our cause is just and our ultimate victory is assured.”
Bush’s rhetoric is mostly remembered now for decisive statements like those. He came to regret some of them — like saying he wanted Osama bin Laden “dead or alive,” declaring victory in Iraq in front of a giant “Mission Accomplished” banner, or using the religiously loaded word “crusade” to describe the global conflict against terrorists.
But arguably more important was a moment when his trademark certainty wavered. Asked in an August 2004 interview with NBC’s Today Show whether the United States could ever win the global war on terrorism that he had declared after the 9/11 attacks, Bush replied: “I don’t think you can win it.”
Instead, he said, “I think you can create conditions so that those who use terror as a tool are less acceptable in parts of the world.”
Republicans winced, Democrats pounced, and within a day Bush was back to promising victory.
He wasn’t the only presidential candidate that year to take heat for adding a shade of gray to a typically black-and-white national debate. Democratic nominee (and future Obama secretary of state) John Kerry told the New York Times two months later that “we have to get back to the place we were, where terrorists are not the focus of our lives, but they’re a nuisance.”
Citing his experience as a former prosecutor, Kerry told the Times: “I know we’re never going to end prostitution. We’re never going to end illegal gambling. But we’re going to reduce it, organized crime, to a level where it isn’t on the rise. It isn’t threatening people’s lives every day, and fundamentally, it’s something that you continue to fight, but it’s not threatening the fabric of your life.”
Democrats winced, Republicans pounced, and soon Kerry was sounding more like Bush.
Ten years after Bush and Kerry’s experiences, Obama had one of his own brushes with politically risky nuance. At a Sept. 3, 2014, press conference with Estonia’s president, Obama laid out his vision for how to defeat the Islamic State.
“If we are joined by the international community, we can continue to shrink ISIL’s sphere of influence, its effectiveness, its financing, its military capabilities to the point where it is a manageable problem,” he said.
Republicans accused him of sending a mixed message: Can the United States set a goal to “degrade and destroy” ISIS but be content with making it “a manageable problem.”
When it comes to terrorism, can Americans do nuance?
“I actually think Americans can,” Rhodes said. But “it’s easier politically sometimes to use more maximalist rhetoric because it’s more satisfying to people — that we’re going to wipe them off the face of the earth, eradicate them for all time,” he added.
Bush’s “rhetoric was so ambitious that it was almost like just knocking over the Taliban wasn’t sufficient, that [it led to] the types of policies that we would have not [otherwise] engaged in, be it the war in Iraq or the opening of Gitmo or the employment of enhanced interrogation techniques,” Rhodes said. “It was almost a logical end of the type of rhetoric that was being used, in that if you are using a certain type of maximalist rhetoric with the public, you in some ways are raising the bar on yourself to do more things.”
Obama’s Republican critics, like Sen. Ted Cruz, have criticized the president’s refusal to describe America’s enemy as “radical Islamic terrorism,” charging that he is out of touch. Cruz has also demanded that Obama take “decisive action for victory over evil” and that ISIS to be “utterly destroyed.”
Obama aides express frustration at the notion that the United States can wipe out every last ISIS adherent. They are also mindful that yesterday’s boast can come back to haunt them, the way Obama’s confident reelection campaign message that “al-Qaida is on the run” did after extremists assaulted U.S. facilities in Benghazi in September 2012, killing four Americans.
With Obama’s reelection safely in the rear-view mirror, the White House now is echoing the more nuanced language that once got Bush in trouble on the Today show, and Kerry in his interview with the Times.
“I don’t think you’re ever going to eliminate the use of terrorism,” Rhodes said. “There will be people who murder other people who are innocent for political purposes for the rest of human history.”
To the extent that there can be an end to what Bush dubbed “the global war on terrorism,” Rhodes explained, it will require things in America’s hands and also some well outside of U.S. control — and it may take decades.
“There has to be, number one, a sufficient defensive and deterrent effect so that it is understood that if you self-identify as a terrorist organization at war with the United States that you’re likely to be killed,” he said.
But the second thing that must happen is for Middle Eastern governments to find ways to address “grievance and dissent” so that anger does not turn into a “nihilistic war against the world.”
Rhodes pointed to Northern Ireland and said “cultural shifts” led the Irish Republican Army to abandon terrorist tactics.
“There has to be a similar evolution in … the Middle East.”
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