Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, February 24, 2007

Legal Groundwork To Apply Existing AUMF To Iran

Iran: US Plan to Enforce UN Resolution On Back of AUMF

The President plans to argue that the AUMF against Iraq authorizes the President to enforce, through combat, UN Security Council resolutions against Iran.

Ref: What the BUsh speech may look like when he calls for war against Iran: The arguments, the claims.

What You Can Do: Let the Speaker know what you think about this recommendation.

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Rule: An illegal war of aggression of Japan and Germany in WWII was not legalized by them arguing they were opposing resistance to that illegal activity, as Iran is lawfully allowed in 2007.

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Ref You can see why the White House emphasizes the UN Security Council resolutions to provide security to Iraq.

The White House plans to use the Congressional authorization for use of force in Iraq to attack Iran without Congressional authorization to broadly use the AUMF beyond Congressional intent.

DoJ and White House counsel are creating the bridge between (a) the Iraq AUMF; and (b) the US led effort to impose sanctions on Iran. The Iran-effort is being cast as an extension of the US AUMF, linked with Iraqi stabilization and regional security.

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Analogy: When you read the following, imagine Spider Man on one building, shooting his web across the street to a second building. With enough web lines, someone from the White House might argue, "The two buildings are connected and one." [Quoted "White House arguments" are lifted from this story.]

(Web 1) Establishing the Illusory Principle of Prospective Incorporation

The principle of prospective incorporation means expanding a legal argument beyond what it is intended; but those original legal authorities are retroactively cast as intending something beyond what exited, to new things outside the law.

The law and intended parameters of its application are seen as movable; if that new standard crosses a legal standard, the principle is used as a "justification" to ignore the language which prohibits the illegal activity. Think of this as a Presidential veto the President chooses to invoke if he disagrees with a narrow authority; and wants to grant himself broad authority to do new things.

"certainly envisioned subsequent U.N. Security Council resolutions"

Applying this principle, future UN resolutions to bring stability to Iraq permit the President to use the Congressional AUMF to prevent Iranian interference. The White House is using the AUMF as a means to prospectively include future things which the President may choose to consider, define, or conclude. These factors can include things which Congress did not intend including Iraqi stability as it relates to Iran; and new, future UN Security Council objectives and resolutions beyond those focusing on Iraq.

The US, as with the AUMF in re Afghanistan, is arguing that the AUMF envisioned "unforeseen details". However, this was not the intent. Notice the similarity in how the AUMF is broadly expand to include Iran, as the 2001 Sept AUMF in re AlQueda was broadly -- illegally -- expand retroactively after detection to say the AUMF permitted illegal surveillance, FISA violations, war crimes, prisoner abuse, and detention in Eastern Europe.


___ Pretends that language related to situation 1 can be broadly stretched to apply to situation 2, even though the language narrowly applies to situation 1

___ In no way incorporates within the original language related to country 1 new language which relates to country 2

___ Asserts a "Certainty" of vision, without certainty of language within that original resolution

___ Pretends legal requirements connected to specific language can be broadly applied to vague, speculative, and non-mentioned things

___ Asserts certain, specific action and firm legal requirements can be justified and grounded on vague visions which are not certain, but speculative, non-legal, and not a credible legal foundation

___ Inapposite case law. Arguing for the "need for action" [based on supposed imminence, where there is supposedly no time for review] by using legal arguments which require time to develop. [Invalid basis to argue for an "immediate threat" or that there is "no time" for Congress to review; and destroys the argument that the situation was "so pressing and chaotic" that the President had to act without consulting Congress

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(Web 2) Linking the narrow UN Security Council Language against Iran to the Iraqi AUMF

"the U.N. Security Council it envisioned changing circumstances in Iraq"

The President plans to use the UN Security Council resolution as a legal argument to make Congressional input irrelevant. The goal of the White House is to move away from Congressional Article 1 Section 8 powers, to whether Congress has the power to stop the President from implementing a broadly defined Security Council resolution.

The White House-DoJ argument: In 2002-3 the UN anticipated that the Iraq security arrangement would require the US to impose order in Iran to stabilize Iraq.

What the President says the UN "anticipated" is meaningless with respect to US Members of Congress, and their explicit rejection of White House use of combat troops in Iran. The UN Security Council resolution is interesting, but has no legal foundation to trump the 2007 House requirement that the President seek, and secure Congressional approval before launching combat operations.


___ Pretends a resolution against country 1 is affected by an unrelated country's actions

___ Pretends a resolution related to commercial issues in country 1 is affected by use of force declaration by Congress in Country 2

___ Pretends the Security Council is a super-legislature with wisdom; but not assenting to language which does not recognize the legality of US action in Iraq

___ Attempts to move from (a) illegal activity in Iraq, which the UN did not recognize as lawful; and expand that illegal activity to (b) a new situation, new country, new situation [Building an argument on an initial flawed premise is flawed]

___ Pretends the narrow resolution on Iraq, which the US illegally violated, can be broadly interpreted to include new things beyond the intent of the original resolution

___ Pretends that new things, however the President defines them, unrelated to the original language can be connected to irrelevant, but "sounds good to me"-language

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(Web 3) Linking AUMF to UN Security Council Resolutions Against Iran

"war authorization spoke to and certainly envisioned subsequent U.N. Security Council resolutions"

The link between Congressional action on Iraq is being broadly applied to [1] unrelated issues; and [2] outside the intent of Congress. The lessons of the FY06 intelligence bill apply: Broadly interpreting language to permit new uses of legal language; then creating secret Executive Orders to implement that self-delegated, but non-lawful authority.

It is, as with the AUMF of Sept 2001 and FISA, outside reasonable discourse for the President to argue the Iraq AUMF was intended to enforce new UN resolutions related to Iran.

As with the AUMF following 9-11, White House is attempting to stretch the AUMF from combat, to explain away legal challenges to known violations of the law.

The goal is to change the issue from whether Iran is or isn't a threat; to whether the Iraqi's interests, as the President interprets them, are or are not being respected by Iran.

The President hopes to redefine reality in Iraq, asserting or implying the regional security situation, as it relates to the AUMF, is not being respected; and must be considered in light of the UN Security Council resolutions which have not been yet imagined, nor crated.


___ Pretending that (a) Congressional intent related to (b) situation 1, applies to (c) Situation 2, which is expressed through (d) a different organization and (e) different language.

___ Pretending Congressional language (legislative power) of long ago is "constrained" by subsequent language of an organization outside Congressional control

___ Requires Congress to assent to Executive Orders, as expressed through UN language, which illegally expand narrow Congressional intent

__ Stretching the Iraq AUMF without allowing that AUMF to be challenged on its illegality

___ Preventing Congress from reviewing information showing the original AUMF was based on fraud

___ Without permitting legal review of the original fraudulent AUMF, stretching that non-reviewed AUMF to something new

___ Pretending that the "precedent of non-review" as it relates to the first AUMF, also applies and prohibits review of the broader application of that AUMF

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(Web 4) Creating New Objectives Outside Original Congressional Intent

"second part of that section on authorization is still important and envisioned the changing nature there"

Notice they're still arguing that despite a new situation, there picking from the statute and AUMF to twist it to say [a] it is still relevant; and [b] the newly defined situation fits within that adjusted interpretation.

They've broadened the definition of what is covered; and they've redefined the situation with Iran to fit within the new definition of the AUMF.


___ Picks part of the language related to one situation, and creates a notion of what "Congress intended" without submitting that review to the court

___ Pretends that Congress intended to permit new definitions of "changing"

___ Incorrectly pretends that Congress intended to include a speculative term "envisioning" despite no specific language about what that vision might be

___ Vaguely saying Congress "Envision" something is not a specific enough term to ground a legal theory for warfare; warfare cannot be based on "speculative visions" but on reality, and imminent-real problems

___ The approach is Quantum Legislation, where Congressional language has two states: (1) Godlike vision warranting the President to say that all things remotely related to this remote vision; yet (2) No valid basis for anyone to stick to the explicit language which only relates to Iraq. Congressional language is quantum legislation when it is invoked to compel assent to (Presidential) vagueness; but ignored on the basis that Congress "got it wrong." This is cherry picking, and no different than the Iran-Contra minority report.

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(Web 5) Moving away from Saddam and Referring to Regional Security

"the resolution that is in place is operative"

Notice they're [a] asserting the AUMF still applies; and [b] the language of the AUMF is still the controlling force. Even through the US objectives with the Original AUMF have been met or not met; they're arguing that the AUMF is not narrowly related to Iraq, but to a broader set of conditions which require the US to remain, expand, and enter Iran.

Emphasizing the word "operative" is a legal argument to make DoD believe that the Congressional authorization in re Iran is the legal authority for combatant commanders to expand combat from the AUMF in re Iraq into Iran. The language appears to be tailored to address military personnel that the legal foundation for war in Iran is dubious, if not a violation of Geneva.


___ Incorrectly asserts that a resolution remains in place

___ Refuses to accept the premise that the conditions are changed

___ Asserts that a resolution applicable to set of conditions is relevant

___ Fails to accept that a new situation requires new authorization

___ Asserts without proof that Congress intended one thing, while the actions supposedly consistent with that intent contradict Congress

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JAGS have raised concerns, but as with the MCA, they've been based to document their concurrence with the legal interpretations. This is not to get them to support the action in Iraq, but to be used against them if they say they were not involved, or had reservations. The JAGs appear to be under duress to have assented to legal conclusions which they privately doubt.

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White House Perspective

Given the above, the White House announces: "this isn't the fight we entered in Iraq, but it's the fight we're in". This recasts the entire 2002-2003 in a new light; and says ignore what we did or didn't do with other AUMF, accept this casting as we present it, however absurd our AUMF-contruction or situation in Iraq might be.

The goal of the White House isn't to comply with the law or assent to Congress, but to redefine reality in terms that Congress may have never imagined, but the words can be cirri picked and twisted to pretend the AUMF is a legal cover.

The same arguments were given the NSA contractors. The AUMF was sees as a "super warrant" which the Department of Justice said, "We don't need to go to court, Congress, or get any other legal review." Quest rejected these.

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Committee Inquiry

___ Government Operations, Reconstruction Lessons: As with Iraq, how much energy spent on flawed legal arguments in re Iran is distracting attention from the needed oversight of the same flawed planning used to invade Iran?

___ GAO: Which DoD contracts rely on this broadly reinterpreted Iraq AUMF as it relates to Iran to argue they are within the law, and not supporting illegal warfare?

___ Foreign Relations: What UN Security Council resolutions does the US plan to craft, develop, and seek support that will narrowly say one thing, but will be broadly interpreted so the President will use force to support them?

___ Armed Services: Which contractors have rejected this broad recasting of the AUMF, as the Qwest CEO rejected DoJ argument's in re NSA surveillance?

___ Government Operations: What do DoJ and DoD counsel plan to do to firms which refuse to provide material, supplies, and other war related material for this illegal war?

___ Armed Services: When were the JAGs asked to comment in writing their concurrence, or concurrence with reservations, about the broad use of the AUMF for Iraq against Iran?

___ Foreign Relations: What reservations do the JAGs have with the use of the Iraq AUMF to broadly support US action in Iran?

___ Judiciary: What concerns are the JAGs aware from combatant commanders, war fighters, and US military personnel related to use the Iraq AUMF to provide legal cover for targeting in Iran?

___ Armed Services: Which legal questions have US military personnel raised with private counsel about the US operations planned in Iran?

___ Commerce: When was the Lincoln Group contracted to provide security-related media stories in Iraq that would couch the Iraq security situation in terms of broadly applying the Iraq AUMF to factors and issues which would include Iran?

___ Judiciary: How are the legal conclusions of the FISA court -- over the legality or illegality of the US surveillance connected with the AUMF -- being applied to the issue of AUMF in re Iran?