Paul is far from the only person making this argument. The ACLU (see p. 10) — along with countless lawyers for detainees — have repeatedly argued that these expanded AUMF standards are so vague and broad as to allow the President virtually unfettered discretion to detain or otherwise use force against anyone he wants, on the ground that almost anyone can be said to provide “substantial support” to an “associated force.” Just last week, Mother Jones‘ Kevin Drum observed about the new AUMF in Levin/McCain: “From now on, military force will be perpetually pre-authorized against anyone who ‘supports’ any group ‘associated’ with something that looks like al-Qaeda. In other words, pretty much anyone at all.” And here is what Seton Hall Law Professor and long-time detainee lawyer Jonathan Hafetz told me today in explaining how this expanded interpretation of the AUMF is already giving rise to exactly the dangers about which Paul warned and could be even worse in the future:
As to “associated forces”, among the most outrageous uses thus far has been the Uighurs, whom the government detained for years based on their alleged membership in an (associated) Uighur independence group. Another concern is expanding AUMF-detention authority to new groups operating in other regions besides Afghanistan (e.g., Horn of Africa) on the theory that they are “associated” with AQ. [Levin/McCain] thus helps entrench the notion of a global war on terror.
One though could imagine some very frightening scenarios. Could the military arrest and detain a person arrested at his home in say Cleveland, Ohio, for writing a $20,000 check to a group that supported AQ? Or a doctor in New Jersey who sent medical supplies to an organization in Ethiopia, for example, that provided humanitarian aid to a group in that country that was deemed to be affiliated with AQ? The answer is probably yes, under the most aggressive views of the [the new bill].
Given how abusively War on Terror powers have been used by the U.S. Government, it is far more rational to be concerned about such abuse than to dismiss it. In sum, Paul expressed a view widely shared by actual experts who work in this field, as well as commentators (such as Drum) who reside far from his libertarian views. Are all of them, along with Paul, spouting “mostly false” factual statements?
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PolitiFact has two grounds for labeling this argument “mostly false,” the first of which can be dispensed with very quickly. They claim that the broad standards in this new AUMF about which Paul complains are not really new, because they are identical to how the Obama DOJ is already interpreting the 2001 AUMF. That’s true as far as it goes — I made that exact argument on Thursday in explaining that Obama officials believe and often argue that they already possess the powers this new proposed AUMF expressly grants — but it doesn’t go very far at all.
PolitiFact seems unaware of the fact that the Executive Branch doesn’t determine what the law means. Just because Obama lawyers argue that the 2001 AUMF should be read to vest powers beyond the express language of the 2001 AUMF doesn’t mean that’s actually what the law permits (just as the fact that Bush lawyers claimed torture and warrantless eavesdropping were legal didn’t mean it really was). And while some courts have accepted this broad interpretation, the question is by no means settled; having Congress codify a broader definition would certainly bolster that interpretation — otherwise they wouldn’t do it.
Rather obviously, what Paul (and many other critics of this bill) are saying is that the new, explicit expansion of the AUMF by Congress is dangerous — even if Obama lawyers have already adopted it — because the definition in this new bill is both so broad and vague as to entail very few limits on the President’s ability to detain or use force against whomever he wants. And that is completely true; at the very least, it’s a viable opinion, shared by numerous actual experts, which PolitiFact has no business branding as “mostly false.”
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But the real import of PolitiFact‘s analysis is that it relies entirely on two supposedly neutral legal “experts”: The Brooking Institution’s Benjamin Wittes and University of Texas Law School’s Robert Chesney, both of whom co-founded and write together on the “Lawfare” blog (along with former Bush DOJ lawyer Jack Goldsmith). That duo mocks as “nonsense” and “preposterous” Paul’s view that these new AUMF standards vest the President with dangerous levels of discretion. They ridicule Paul’s concerns even as Chesney admits that “Paul fairly points out the lack of a definition of associated forces.” PolitiFact then blindly relies upon what these two experts told them to declare Paul’s concerns to be “largely false.”
The notion that these two individuals — or anyone like them — are entitled to be treated as neutral, ideology-free experts is what is “preposterous nonsense.” But this is a common means of deceit in our political discourse: depicting highly biased, ideologically rigid establishment advocates as some kind of neutral expert-arbiters of fact, even though they’re drenched in all sorts of biases and ideological objectives.
I recently wrote about this with regard to the conceit of establishment journalists that they are “objective” even though they ooze all sorts of obvious, serious establishment biases. Identically, Paul Krugman and Brad DeLong, among others, recently pointed out that a slew of economists typically referred to as “technocrats” — as though they are merely ideology-free, objective administrators and experts — are, in fact, hard-core ideologues. This is exactly true of the two “experts” on whom PolitiFact relies to conclude that there is nothing particularly worrisome in the new AUMF language, and it’s true of most “national security and Terrorism experts” paraded by media outlets to justify the government’s conduct.
Just on the level of credentials, in what sense is Wittes — who, just by the way, is not a lawyer and never studied law — more of an expert on these matters than, say, Ron Paul or Kevin Drum? And why are the pronouncements of Robert Chesney that this AUMF language is not dangerously permissive more authoritative than the views on the same topic of ACLU lawyers or Professor Hafetz, who say exactly the opposite? Both Wittes and Chesney are perfectly well-versed in these issues, but so are countless others who have expressed Paul’s exact views. Why is the Wittes/Chesney opinion that these AUFM standards are perfectly narrow and trustworthy — and that’s all it is: an opinion — treated by PolitiFact as factually dispositive, while the views of Paul and those who agree with him are treated as false? That is preposterous nonsense.
But this is the cult of contrived neutrality that dominates so much political and media narrative. One of these objective experts, Wittes, works for a think tank lavishly funded by Haim Saban, who described himself this way:
On the issues of security and terrorism I am a total hawk. I’m a Democrat for the reinforcement of the Patriot Act. It’s not strong enough. The A.C.L.U. can eat their heart out, but they are living in the 1970′s. We should all have ID’s. You betcha. What do you have to hide? Some friends of mine on the left side think I’m crazy. . . . I’m a one-issue guy and my issue is Israel.
Wittes — unsurprisingly — has a long history of cheerleading for some of the worst War on Terror excesses and those who committed them, as well as advocating for even more extreme measures than we’ve seen so far. Identically, Chesney has expended substantial energy over the years publicly defending many of the most controversial aspects of the Bush/Cheney — now Bush/Cheney/Obama — War on Terror. The name of their blog — “Lawfare” — is a word used to mock the notion that law should interfere with the glories of war. There is nothing less surprising in the world than the fact that these two dismiss as paranoia and hysteria concerns over the government’s excessive detention powers.
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This is how this contrived neutrality scam typically functions. Wittes and Chesney are not pure neocons, which is why they are able to parade around as objective arbiters. But they are every bit as ideological as Bill Kristol; it’s just a mildly different ideology. What they are are standard defenders of government prerogatives, dutiful servants of political power, wholesale cheerleaders for American exceptionalism, masquerading under the banner of “centrism.” They are full-throttled believers in the War on Terror. One can agree or disagree with them all one wants, but one cannot reasonably depict them as even slightly more neutral or objective than Ron Paul, and they are certainly not above-the-fray arbiters who can descend down and authoritatively resolve political disputes.
This contrived neutrality is a common scam in our political discourse, and it frequently shapes our national security and civil liberties debates. There is a whole insular, rotted culture based in Washington — they refer variously to themselves as the Foreign Policy Community or “natsec” experts and they’re found at think tanks, a small set of academic institutions (which serve as feeders for government agencies), and establishment media outlets — who have endless, amiable, self-flattering debates with themselves within an extremely narrow range of opinion. But even when they feign disagreement, it’s all grounded in the same common nationalistic assumptions. What they are, above all else, are devotees to political power. They’re the classic royal court courtiers and hangers-on. They’ll question the tactics of American foreign policy endlessly (are we fighting this war the right way?), but never the ends, and most especially never America’s right to do what it wants in the world and the right of its government to seize ever more power in the name of those wars. They’re free to express those views, but — like the bevy of bias-ridden establishment journalists, economic “technocrats,” and the sham Terrorism expert community — they’re anything but neutral, objective and ideology-free.
One trick they use to prevent anyone from talking about the embedded biases and operating dynamics of their insular culture is to proclaim these discussions off-limits on the ground of incivility. The last time I wrote about the Brookings culture and funding sources, Wittes wrote a series of petulant posts declaring that he would never again engage or mention me (since then, he has responded to what I’ve written several times while childishly refusing to use my name, even once re-printing a response to a column of mine from a cowardly “senior administration lawyer” insisting on (and receiving) anonymity who did the same: “He Whose Name Must Not Be Mentioned”). They try to create rules in the name of civility where you are forced to accept and honor their expertise and objectivity — you must simply ignore and never mention the cultural, financial and careerist incentives they have to spout pro-government, authoritarian views (recall what Les Gelb said about why they often are pro-war) — so that their expertise, objectivity and good faith remain unquestioned.
If you do anything other than pretend that they are Beacons of Bias-Free Objectivity — if you analyze the mandated orthodoxies in their world and the cultural pressures to accept and spout those orthodoxies — then you’re engaged in unfair “personal attacks” and will prompt outcries from the fellow devotees of their National Security priesthood. You’re not permitted to question their objectivity or expertise. We’re all supposed to pretend that war cheerleaders at Brookings and similar think tanks are honorable “scholars” and good faith, ideology-free experts — like the leading Democratic Saban-funded cheerleader for the Iraq War and now leading agitator for the Iranian Threat — or else we’re proving how crass, gauche and mean we are: how unSerious.
This is the scam of contrived neutrality and objective expertise which PolitiFact fell for in condemning Ron Paul’s perfectly rational statements as “mostly false”: Ben Wittes and Bobby Chesney said there was nothing to worry about and such concerns about detention abuses were “preposterous”! What more proof do you need? The objective “centrist” expert hath thus decreed it, and thus is it proven.