Look, I understand you're trying to support your argument by drawing comparisons to another better-defined war, but your particular choice of wars is baffling. Most often, comparisons are made to the American civil war; Lincoln's explorations of executive power in the face of an existential threat to the republic are profoundly relevant to this debate. WW2... I'm at a loss.
The 2001 AUMF, for example, is as far removed from the US declaration of war against the axis as you can get. It's everything that a typical formal declaration of war isn't, with the vaguest possible definitions of who the enemy is and where the battle can be fought. It has no real limits of any kind, and has henceforth been used as a license for indefinite military action.
>"Nobody in al Qaeda wears a uniform; they deliberately avoid them, to maximize the probability that their opponents will kill innocent civilians."
I may be a bit slow, but honestly I already knew this :) Yes this conflict is very different from the canonical 20th century wars which naturally shape our views of what war "ought" to be. Our laws and treaties are inadequate, and leave us in troubling gray areas, and I'm not convinced there are any good ways out.
BUT...
I'm also pretty sure a good solution is NOT to simply give the president the license to do whatever he wants to whomever he labels a "terrorist", regardless of location or citizenship. This is precisely the license assumed by the Bush administration during John Yoo's tenure. It appears to be the basis of your own assertions as well; please tell me I'm wrong.
The AUMF was a declaration of war. The Constitution doesn't lay out the specific form of a "declaration of war"; the Korean War, for instance, was fought under the aegis of a UN declaration. Wars fought under informal authorization by Congress date all the way back to Jefferson and the First Barbary War.
It's a popular myth that we're fighting an "undeclared" war against al Qaeda, but unfortunately, that's all it is. We really did declare war against al Qaeda, by name, in 2001, and because al Qaeda is a brand name and not a nation state, at war we will remain until Congress repeals the AUMF.
The comparison to WW2 is simple: during WW2, scores of German-Americans traveled to Europe to fight on behalf of the Nazis. We didn't read them their rights before we killed them. American citizenship did not shield them from the consequences of armed conflict. If al-Awlaki wanted to prosecute his cause using the mechanisms of due process, it was a decidedly stupid idea for him to take up residence in territory controlled by AQAP, where the only reasonable mechanism the US had available to it to stop him from killing innocent civilians was an airstrike.
Also, you're wrong about the President's authorization to kill whomever he labels a "terrorist". The President does not have a blanket authorization to use the military against "terrorists". He has authorization only to strike against al Qaeda and those persons and organizations who assisted in the attacks on 9/11. The President cannot authorize airstrikes against, say, Basque separatists, or the Tamil Tigers.
So, yes, the POTUS can, and does, decide who JSOC will be going after next.
I'm not really disputing that. I'm saying that using the AUMF to draw comparisons to WW2 is not helpful.
>"The comparison to WW2 is simple: during WW2, scores of German-Americans traveled to Europe to fight on behalf of the Nazis."
Yes, in uniforms, on the battlefield. We didn't, as far as I know, bomb a dude writing anti-american propaganda in a city far from the battlefield. This whole WW2 analogy of yours is really tortured, and I feel foolish even arguing about it.
>"The President does not have a blanket authorization to use the military against "terrorists". He has authorization only to strike against al Qaeda and those persons and organizations who assisted in the attacks on 9/11."
Not according to the current president. I'll let Eric Holder speak here:
It is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.
This is from his speech at Northwestern, wherein he uses the phrase "al Qaeda and associated forces" five times.
Guess who gets to decide what "associated" and "operational leader" mean.
I'm frustrated that I have to spell it out like this. This administration has made it perfectly clear that if you're an American citizen abroad, the president can have you killed based on an evaluation that he alone can make. The customary checks of the judicial branch can be waved at will if the president can link you to AQ in some way. Apparently, moving to Yemen and claiming to be a leader in AQ in some shitty youtube videos counts. The bar will possibly be lower in future administrations. Or not. The point is that the process is completely opaque and unchecked.
In reality, the guy in Shabwa is far, far more dangerous than the random lunatic fighting with the Nazis was in Holland. The lunatic wasn't about to coordinate the bombing of a commercial airliner filled with innocent people. But that's exactly what al-Awlaki was doing.
Meanwhile, your Holder quote doesn't rebut my argument. Holder is saying the administration can launch strikes against al Qaeda. You made a broader claim, the administration can designate people "terrorists" and kill them. You were incorrect. They cannot do that.
You also drastically oversimplify the charges against al-Awlaki. He wasn't designated a leader of al Qaeda because of "shitty Youtube videos", nor was he killed simply because he wrote articles advocating for al Qaeda. Similarly, Osama bin Laden wasn't targeted because he himself bombed an embassy in Tanzania, blew a giant hole in the USS Cole, or stabbed someone on an airplane with a box cutter.
He actually took great care not to say that. He is carefully not limiting the president to action only against AQ. The phrase "al Qaeda and associated forces" is deliberate. He is expressly reserving the power to decide who is "associated" to AQ and in a "leadership" position, and to take lethal action based on those decisions. All of these decisions are completely opaque and unchecked by any power outside of the executive.
The 2001 AUMF is a sideshow. Holder doesn't think he needs it. He has opined that congress has no authority over the president in this area anyway, and that includes military action on U.S. soil:
http://www.salon.com/2013/03/06/does_eric_holder_know_the_la...
I consider this a dangerous concentration of power that the president should reject. This appears to be the crux of our disagreement, yes?
No, we didn't. There are no named persons or organizations in the 2001 AUMF, it is literally a blank-check declaration of war that authorizes the President to write in names. Which is one of the many reasons that people (including Barack Obama -- as President -- have said it needs to be sunsetted.)
The 2001 AUMF authorized force against people and organizations "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". Which is al Qaeda and the Taliban, but yes, not by name!
And yes, of course, the 2001 AUMF is awful.
But to 'nate_meurer's point: the President does not have the authority to kill people simply because he has determined that they are terrorists. Nor does he consistently have the authority to kill people that are determined to be in al Qaeda; for instance, if they're on American soil and not actively engaging in violence, Holder has testified under oath that their killing would be unconstitutional.
If you have a citation for this I like to see it. Overall he doesn't seem too committed to this idea. Furthermore, he seems to think that the president is the only legitimate arbiter of the constitutionality of these actions. From http://www.salon.com/2013/03/06/does_eric_holder_know_the_la...:
At a Senate Judiciary Committee hearing today, Sen. Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he asked directly, explaining he meant the prohibition would apply only where a person did not present an imminent threat.
“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.
I think I'm done with this argument now.
The time when the US declare peace will not be because of dead terrorists. It won't be because somewhere its more safer. It won't be because some goals has been achieved. It will be because sooner or later, people will get tired of war.
I can say this with 100% certainty based on a concept made two thousand years ago:
The pinnacle of military deployment approaches the
formless: if it is formless, then even the deepest spy
cannot discern it nor the wise make plans against it."
-- Sun Tzu, "The Art of War", Datalinks
*The conflict is formless*
Thus the conflict itself can not be won, it can only be fought perpetually. The deepest spy cannot discern what is needed to be destroyed for victory, and the wise can not device a plan for it.