The Corner

When Did Holder Stop Thinking We Were ‘In a Time of War’?

Attorney General Eric Holder, now on his way out the door, clearly feels liberated to let fly with his various interesting views on things. But in light of his assertion today that the nation is “not in a time of war,” one has to wonder when he came to that conclusion. Not only, as Brendan notes, are thousands of American soldiers still in harm’s way in Afghanistan and Iraq. The commander-in-chief is still ordering air strikes and/or drone strikes in Iraq, Syria, Pakistan, Yemen, and Somalia.

Sometime back, when questions were raised about the legality of aerial attacks and targeted killings, including killings of American citizens who joined enemy forces, Holder’s Justice Department furnished a legal memorandum explaining that the President Obama’s actions are legal because the United States is at war and therefore the law of war applies. Here are some excerpts from the memo, beginning at p. 20:

We conclude that the justification [for the government to conduct lethal attacks] would be available because the operation would constitute “the lawful conduct of war” – a well-established variant of the public authority justification. [Footnote omitted.]

As one authority has explained by example, “if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder[.]” . . .

We note as an initial matter that DoD would undertake the operation [to kill enemy personnel] pursuant to executive war powers that Congress has expressly authorized. . . .

The Supreme Court has recognized that, because military detention of the enemy forces is “by universal agreement and practice, an important incident of war,” Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (other citation, internal quotations and brackets omitted) . . . the AUMF [Authorization for the Use of Military Force] authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. In addition, the Court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen. Id. at 519-24; see also [Ex Parte] Quirin, 317 U.S. at 37-38 (“[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts,” may be treated as “enemy belligerents” under the law of war) . . .

In light of these precedents, we believe the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization. The use of lethal force against such enemy forces, like military detention, is an important incident of war. [Citing Hamdi.]

If Holder no longer believes the nation is at war, is he saying this legal advice he gave to the president, which applies the law of war on the assumption that the nation is at war, no longer applies? And if that is the case, what is the attorney general’s legal justification for the president’s continued use of lethal force? 

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