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Obama’s Legal Rationale For War Against Islamic State Secret And ‘Very Thin’

By Marisa Taylor and Jonathan S. Landay, McClatchy Washington Bureau (TNS)

WASHINGTON — As U.S. military operations against the Islamic State approach the one-year mark, the White House has failed to give Congress and the public a comprehensive written analysis setting out the legal powers that President Barack Obama is using to put U.S. personnel in harm’s way in Iraq and Syria.

The absence of an in-depth legal rationale takes on greater urgency with Obama’s decision this week to dispatch up to an additional 450 U.S. military trainers and other personnel to Iraq and to establish a second training site for Iraqi forces in war-ravaged Anbar province, most of which is under Islamic State control.

The only document the White House has provided to a few key lawmakers comprises four pages of what are essentially talking points, described by those who’ve read them as shallow and based on disputed assertions of presidential authority.

“It’s very thin,” Rep. Adam Schiff of California, the senior Democrat on the House Intelligence Committee, said of the document.

Schiff contended that without a new congressional resolution that specifically confirms the president’s power to intervene militarily against the Islamic State in Iraq and Syria, Obama is overseeing a dangerous expansion of presidential war-making powers.

“This is opening the door to future presidents making war without any reliance on congressional authorization,” said Schiff. He added that Congress also is to blame because it has failed to pass a new resolution expressly authorizing the deployment of U.S. military trainers, advisers and security units to Iraq and the use of U.S.-led airstrikes that have been staged against the Islamic State in Iraq since August and in Syria since September.

The absence of a public legal analysis — replete with court rulings and historical precedents — constrains public debate on the growing U.S. military role in the tumultuous Middle East nearly four years after Obama pulled U.S. combat troops out of Iraq, and has hampered congressional efforts to forge a new resolution on the Islamic State, also known as ISIL or ISIS.

“The burden is on the administration to come forward and ensure that its legal basis is justified and appropriate,” said Raha Wala, senior counsel for Human Rights First, a nonprofit New York-based advocacy group. “In any democracy, we can’t operate with secret law.”

More significantly, by not setting out a legal case in public documents, Obama may be trying to preserve his flexibility to authorize new operations against the Islamic State or other extremist groups elsewhere, unfettered by constraints that could be imposed by Congress.

In his secretive and expansive view of presidential powers, some experts see Obama following the lead of his predecessor, George W. Bush.

The administration’s only public articulation of its legal position has come in speeches, letters and the four-page document provided to key lawmakers — titled “Legal Basis for U.S. Military Operations in Syria” — that was drafted around the same time of the first U.S. airstrikes on the Islamic State in Syria. By contrast, a secret 2010 Justice Department opinion — released by the administration under court order — that authorized the targeted killing of American leaders of al-Qaida runs 31 pages and cites extensive examples of domestic and international laws and U.S. court decisions in setting down a comprehensive framework for such operations.

When it comes to Syria and Iraq, the administration “has clearly articulated our legal authorities in numerous public venues including White House press briefings, congressional testimonies and other forums,” said a White House official who is knowledgeable of the issue but wasn’t authorized to speak publicly as a matter of practice.

The president’s legal team “engaged with lawyers from key departments and agencies in discussions about the underlying authorities for those actions,” said the White House official.

“It defies common sense to believe that the president has taken this type of action based on a four-page set of bullet points and not a full legal analysis by either the Office of Legal Counsel or the White House counsel,” said Chris Anders, senior legislative counsel for the American Civil Liberties Union. “This is too important of a decision to be made without that kind of legal advice.”

Initially, the administration argued that Obama could authorize military operations under Article Two of the Constitution, which designates him as the commander in chief of the U.S. armed forces.

But under fire from Congress, the administration adopted as its main arguments for Obama’s authority the 2001 congressional resolution that authorized the use of force against al-Qaida and “associated forces” and the 2002 resolution approving the invasion of Iraq and the overthrow of the late dictator Saddam Hussein.

The 2001 resolution “authorized the use of force against ISIL beginning in at least 2004, when ISIL, then known as al-Qaida in Iraq, pledged its allegiance to (the late Osama) bin Laden,” says the four-page document. “The recent split between ISIL and al-Qaida’s current leadership does not remove ISIL from coverage.

“Although the threat posed by Saddam Hussein’s regime in Iraq is the focus of the 2002 (resolution), the statute … has always been understood to authorize the use of force for additional purposes,” it says.

Those administration assertions, however, only generated more heat.

Critics dismissed the White House’s assertion that the Islamic State is an appendage of al-Qaida, pointing to the 2014 rupture between the two extremist organizations and the ongoing battles they’re fighting in Syria. Moreover, they say, the Islamic State didn’t exist in 2001.

Critics also reject the administration’s reliance on the 2002 resolution because Saddam is no longer in power and the situation in Iraq is radically different.

“There’s no question in my mind that the ongoing war against ISIL goes well beyond the existing 2001 and 2002 (resolutions),” said Sen. Tim Kaine, D-Va., who this week introduced with Sen. Jeff Flake, R-Ariz., draft legislation that would authorize the U.S. campaign against the Islamic State.

The White House and the Justice Department have refused to even acknowledge if the president has sought a written legal analysis underpinning his authority. The White House referred McClatchy to the Justice Department, which declined to comment.

(Anita Kumar contributed to this report.)

(c)2015 McClatchy Washington Bureau. Distributed by Tribune Content Agency, LLC.

File photo: U.S. President Barack Obama speaks on the legislation he sent to Congress today to authorize the use of military force (AUMF) against Islamic State in the Roosevelt Room of the White House Feb. 11, 2015 in Washington, D.C. (Olivier Douliery/Abaca Press/TNS)

After CIA Gets Secret Whistleblower Email, Congress Worries About More Spying

By Marisa Taylor and Jonathan S. Landay, McClatchy Washington Bureau

WASHINGTON — The CIA obtained a confidential email to Congress about alleged whistleblower retaliation related to the Senate’s classified report on the agency’s harsh interrogation program, triggering fears that the CIA has been intercepting the communications of officials who handle whistleblower cases.

The CIA got hold of the legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring, people familiar with the matter told McClatchy. It’s unclear how the agency obtained the material.

At the time, the CIA was embroiled in a furious behind-the-scenes battle with the Senate Intelligence Committee over the panel’s investigation of the agency’s interrogation program, including accusations that the CIA illegally monitored computers used in the five-year probe. The CIA has denied the charges.

The email controversy points to holes in the intelligence community’s whistleblower protection systems and raises fresh questions about the extent to which intelligence agencies can elude congressional oversight.

The email related to allegations that the agency’s inspector general, David Buckley, failed to properly investigate CIA retaliation against an agency official who cooperated in the committee’s probe, said the knowledgeable people, who asked not to be further identified because of the sensitivity of the matter.

Somehow, according to these people, Buckley obtained the email, which was written by Daniel Meyer, the intelligence community’s top official for whistleblower cases, to the office of Sen. Chuck Grassley (R-IA), a leading whistleblower-protection advocate. The Senate Intelligence Committee also learned of the matter, said the knowledgeable people.

After obtaining the email, Buckley approached Meyer’s boss, I. Charles McCullough III, the inspector general for the 17-agency U.S. intelligence community, in what may have constituted a violation of the confidentiality of the whistleblowing process, they said.

Monitoring communications between inspectors general and lawmakers would clash with efforts by Congress and President Barack Obama to strengthen protections for intelligence community whistleblowers. If government officials outside an inspector general’s office accessed such communications, they could discover whistleblowers’ identities and retaliate against them by targeting them as security risks known as “insider threats.”

The incident involving Meyer’s email occurred shortly before Grassley and Sen. Ron Wyden, (D-OR), a member of the Senate Intelligence Committee, wrote to Director of National Intelligence James Clapper demanding to know if all of the communications of federal employees with security clearances are being continually monitored, without protections for whistleblowers. McClatchy’s sources said that the letter and the email were likely connected.

“If whistleblower communications with Inspectors General or with Congress are routinely monitored and conveyed to agency leadership, it would defeat the ability to make protected disclosures confidentially, which is especially important in an intelligence community context,” the senators wrote.

The letter, which Grassley and Wyden made public on June 19, made no mention of the email controversy. Grassley’s office declined to comment on the letter or the email controversy. “The letter speaks for itself,” said Keith Chu, a Wyden spokesman, who declined further comment.

The senators wrote that monitoring whistleblower communications “could result in whistleblowers choosing to make unprotected disclosures in public forums, with potential negative consequences for national security.” They were apparently referring to former National Security Agency contractor Edward Snowden’s disclosures to the media.

Snowden has said that he decided to leak to the media thousands of top-secret documents on the NSA’s sweeping collection of Americans’ communications data in part because he did not trust the system designed to protect whistleblowers from retaliation.

AFP Photo/Saul Loeb

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