Defense Department general counsel Stephen W. Preston

Does the President have to have a statute authorizing the use of military force in order to legally wage war against terrorist groups that may or may not pose an imminent threat to the United States? Or can the President simply target, capture and kill whomever in whatever terrorist group wherever, even if Congress has not authorized action?

This was the subject of a Senate Foreign Relations Committee hearing in which two officials from President Barack Obama’s administration—Mary McLeod, principal deputy legal adviser of the State Department, and Stephen W. Preston, general counsel of the Defense Department— came to testify.

McLeod and Preston were to address questions on what to do with the 9/11 AUMF and Iraq AUMF. Should they be repealed, refined or left alone and ignored entirely?

For a presidential administration which has claimed that the 9/11 AUMF gives the president the authority to target and kill people with drones away from the battlefield and also detain people indefinitely, it was rather stunning to hear both McLeod and Preston inform senators that they did not need the AUMF to do anything they were doing now. The president had the power, regardless of whether a congressional authorization for the use of force existed.

“If the 9/11 AUMF were to expire, would the president be able to conduct counterterrorism operations such as drone strikes in Yemen or other operations against the perpetrators of the Benghazi using existing legal authority? Or would another AUMF be required?” asked Senator Robert Menendez, who is the chair of the committee.

McLeod said President Obama does not need a new or amended AUMF to “take action against imminent threats to the United States.”

Menendez struggled to get the officials to explain what authorities the 9/11 AUMF gave the president that he did not think he already had in the Constitution.

“I’ve got to get a sense, at least from an administration perspective, of what you think the AUMF gave you that you didn’t have otherwise constitutionally or through some other statutory provisions. Because if you tell me you have all the authorities in the world to go ahead and do everything that the 9/11 AUMF provided, then that AUMF wasn’t necessary,” Menendez stated.

There was consensus, however. The officials claimed the president could wage just about any type of counterterrorism operation in the world without this authorization.

It is a brazen example of the imperial presidency and represented a total disregard for the separation of powers designated in the U. S. Constitution that are supposed to create some kind of checks and balances — ideally.

What made the position even more incredible was how McLeod and Preston kept talking about how the Obama administration was eager to “engage” with Congress on this issue. As Senator Tim Kaine (D-VA) pointed out, this was a hearing where officials from the administration were expected to “engage” yet both McLeod and Preston were there and could not tell senators whether they wanted to refine, repeal or do nothing at all with the 9/11 AUMF. (They did inform senators that the administration supported the repeal of the 2002 Iraq AUMF.)

McLeod told Sen. Bob Corker (R-TN) at one point that the reason why an authorization for military force was worth having was political, to show Congress had a “role to play.” Corker responded, “We’re pretty irrelevant to the process from the administration’s standpoint.” And McLeod argued that was not true. “We have consulted closely with the Congress on our counterterrorism activities.”

Yet, how many times have members of Congress asked to read a legal memo that contains the administration’s analysis of its authority to target and kill Americans extrajudicially? At least 19 times. And, finally, so the administration could get its judicial nominee who authored the legal memo—David Barron—approved to the appeals court by Congress, it is reportedly making plans to release a version of the memo and letting senators go to a classified room to view the document. (Note: This is a document that a court has ordered to be released after a Freedom of Information Act (FOIA) lawsuit filed by the ACLU and New York Times and yet the Obama administration is acting like it will be made public voluntarily.)

Officials would not answer questions and discuss what legal authority they thought the president had because the administration believes it should be able to keep how it interprets legal authorities secret from the public. That is the argument the administration makes in courts when groups like the ACLU try to force transparency.

Who or what groups the 9/11 AUMF gives the president the authority to target is classified. Corker asked if the Islamic State of Iraq and Greater Syria (ISIS), Al Nusrah and Al Qaeda in the Islamic Maghreb (AQIM) could be targeted.

“I can’t speak publicly,” Preston said, and then was cut off. Corker asked if it was a “classified answer.” Preston replied, “That’s my understanding.”

“I don’t know how we can debate these issues when you cannot even tell us whether we can or cannot go after groups based on authorizations that Congress itself passed,” Corker complained.

Preston insisted that the “application” of legal standards to potential decisions to go after these groups was not something that could talked about in an “open setting.”

Senator Tim Kaine did manage to get Preston to address what could happen to counterterrorism operations by the Defense Department, the detention of prisoners at Guantanamo Bay and the troop presence in Afghanistan. The answer was the administration would have to find some other authority to continue operations.

In an uncharacteristically adversarial hearing, senators were terribly frustrated and that is primarily because they believe they need to pass another AUMF to cover current and future operations the president is engaged in.

I’ll repeat: The concern is not that all this warfare needs to be curtailed but that it is not legal. Congress needs to step up and do something to make it legal so it is less controversial.

The problem for Congress, as the American public could see on full display, is this is all a big charade. In the war on terrorism, Obama has exercised power in such a way that he does not need Congress’ help in killing people. He can do it all on his own and, when Congress tries to ask for information and be involved, it is a nuisance for his administration.

To be clear, the Congressional Research Service has concluded that Bush and Obama invoked the AUMF to counter terrorist threats and deploy forces in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq and Somalia and to “engage terrorist groups ‘around the world,’” “engage terrorist groups ‘on the high seas,’” “detain individuals at Guantanamo Bay, Cuba and to take other actions related” to detentions and to “conduct trials of terrorist suspects in military commissions.”

Obama has used the 9/11 AUMF as reference for authority in Afghanistan, in Yemen, in Somalia, in the Horn of Africa, on the “high seas,” at Guantanamo Bay and for “military detention of terrorist suspects.” Yet, his own administration officials left the impression that he could all of this without some AUMF that could be conveniently exploited to engage in perpetual war.

This may be the impression left because the administrative is one of the most secretive administrations in the history of the country. On the other hand, it may be what his legal advisors truly believe. Both agreed that it would have been constitutional for Obama to launch strikes on chemical weapons sites in Syria without authorization from Congress.

What made the 9/11 AUMF alarming to Rep. Barbara Lee, who was the only member of the House of Representatives to vote against it, was that the Bush administration could use it to wage an “open-ended war with neither an exit strategy nor a focused target.”  Now, cavalierly, the Obama administration thinks it could twist and stretch the Constitution to do what it has been doing without that AUMF. And this should be regarded as pernicious to everyone because it shows the ease and arrogance in which power feels it can reinterpret the Constitution to enable war making.