Diary

Rosa Brooks advises that war has 'spatial boundaries'

Rosa Brooks will soon become an advisor to Undersecretary Michelle Flournoy and has a legal theory that “spatial boundaries” trumps Congress’s intent in the September 18, 2001 AUMF:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In USA Today, back on December 3, 2002, it was reported that:

On Nov. 3, [2002] a CIA-operated Predator drone fired a missile that destroyed a carload of suspected al-Qaeda operatives in Yemen. The target of the attack, a Yemeni named Qaed Salim Sinan al-Harethi, was the top al-Qaeda operative in that country. Efforts by Yemeni authorities to detain him had previously failed. But the CIA didn’t know a U.S. citizen, Yemeni-American Kamal Derwish, was in the car. He died, along with al-Harethi and four other Yemenis. The Bush administration said the killing of an American in this fashion was legal. “I can assure you that no constitutional questions are raised here. There are authorities that the president can give to officials,” said Condoleezza Rice, Bush’s national security adviser, after the attack. “He’s well within the balance of accepted practice and the letter of his constitutional authority.” American authorities have alleged that Derwish was the leader of an al-Qaeda cell in suburban Buffalo [know as the Lackawana Six]. Most of the alleged members of the cell were arrested and charged with supporting terrorists, but Derwish was not accused of any crime in American courts.

Yet in 2005, Ms. Brooks wrote:

It is worth emphasizing that the distinction between conflict zones and non-conflict zones is not merely technical. Consider the 2002 U.S. missile strike against a truck full of suspected al Qaeda operatives in Yemen, which killed several people, including a U.S. citizen. If Yemen is a conflict zone, this preemptive strike against enemy combatants was legally permissible. If Yemen was not, the strike takes on the character of an extrajudicial execution. … If the executive branch of the U.S. government can detain or kill people at will, based on unreviewable determinations that they are “enemy combatants” in a war that has no geographical boundaries and will never come to an end, then we might as well toss the whole idea of the rule of law out the window.

Our founding fathers were wise beyond their years as they gave the Judiciary branch no role in war.

But with crows like Ms. Brooks now crowing at the Department of Legal Theory, formally known as the Department of Defense, just wait until President Obama reads her memos.