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Harold Koh Identifies Another Big Difference Between the Bush and Obama Administrations

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Thursday, May 9, 2013 at 10:00 AM

From Harold Koh’s speech to the Oxford Union the other day: the first “obvious” difference between the Bush and Obama administrations is that “the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s vague constitutional powers. Under international law, this Administration has expressly recognized that U.S. actions are constrained by the laws of war. So rather than treating this conflict as a Black Hole, this Administration has worked to translate the spirit of those laws and apply them to this new situation.”

Hmmmmm.

Perhaps Koh should reread this speech by his predecessor, our own John Bellinger, who said the following at the London School of Economics on behalf of the Bush administration in 2006:

Now, I am aware that many Europeans do not agree that we are in a war with al Qaida at all, much less a “Global War on Terrorism.” So let me pause here briefly to explain what we mean by the “Global War on Terrorism,” because I know that this term is troubling to Europeans. We do not believe that we are in a legal state of war with every terrorist group everywhere in the world. Rather, the United States uses the term “global war on terrorism” to mean that all countries must strongly oppose, and must fight against, terrorism in all its forms, everywhere around the globe. When used in this sense, I do not think that anyone in Europe would disagree with this objective.

We do, however, believe that we are in a legal state of armed conflict with Al Qaida, for the reasons I have already described.

Perhaps he should also take a look at the Bush administration’s brief in Boumediene (see pp. 62-67), which did not describe the power to detain under domestic law as flowing chiefly from “the President’s vague constitutional powers” but, rather, “from Acts of Congress.” The section is entitled, “The AUMF Authorizes The Detention Of Enemy Combatants As Defined By The CSRT Process.” Only after a lengthy exposition does it say, almost in passing, that “Finally, even apart from the AUMF, petitioners’ detention is independently justified by the President’s constitutional authority.”