Home The Washington Diplomat January 2014 Bush Lawyer Wants Post-9/11 War Authorization Revised

Bush Lawyer Wants Post-9/11 War Authorization Revised

Bush Lawyer Wants Post-9/11 War Authorization Revised

Inside a futuristic office building occupying a block of downtown D.C., a cylindrical atrium of metal and glass opens to a skylight that appears poised to retract for rocket ships transiting to and from the blue beyond. Nearby in the lobby, a club chair and floor lamp stand before shelves bearing rows of thick law encyclopedias with well-worn spines. It’s like finding a reading nook in a spaceport.

This impressive edifice is the headquarters of Arnold & Porter, a law firm that did more than $700 million in revenue in 2012, and I’m here to see one of its partners, John B. Bellinger III.

Previously, Bellinger was the legal advisor for President George W. Bush’s National Security Council from 2001 to 2005 and the top lawyer at the State Department from 2005 to 2009. He worked closely with Condoleezza Rice in both roles. Since leaving government, he has become an outspoken critic of both Bush and Obama’s detention policies at Guantanamo Bay, and he has called on Congress to revise the law that authorizes the war against al-Qaeda and its supporters, known as the Authorization for Use of Military Force.

“For the past decade, executive branch agencies have relied on a sparely worded statute that Congress passed hastily on Sept. 18, 2001, while the wreckage of the World Trade Center was still smoldering,” Bellinger wrote in an op-ed in the Washington Post in 2010. “The Authorization for Use of Military Force (AUMF) provides insufficient authority for our military and intelligence personnel to conduct counterterrorism operations today and inadequate protections for those targeted or detained, including U.S. citizens.”

Photo: Council on Foreign Relations
John B. Bellinger III, John B. Bellinger III, a top legal advisor under President George W. Bush, says that the Authorization for Use of Military Force (AUMF), which he helped craft shortly after the 9/11 terrorist attacks, has expanded beyond its original intent and should be updated.

The law allows the president to use all necessary force against those who contributed to the 9/11 attacks, but as “U.S. forces continue to target terrorist leaders outside Afghanistan,” Bellinger wrote, citing drone strikes in Pakistan, Somalia and Yemen, “it is increasingly unclear whether these terrorists, even if they are planning attacks against U.S. targets, are the same individuals, or even part of the same organization, behind the Sept. 11 attacks.”

Bellinger also pointed out that the law does not expressly authorize the detention of suspected terrorists, nor does it contain “specific provisions for killing terrorists who are U.S. citizens and who enjoy at least some constitutional rights. ” He urged Congress to “update and clarify the legal authority” under which the United States confronts terrorism, a call that seemed especially poignant because Bellinger himself — along with other administration lawyers and officials — helped shape the original law during the White House’s negotiations with Capitol Hill.

In Bellinger’s office, family photos — married for nearly 30 years, Bellinger is the father of two daughters — sit beside his computer, while diplomas from Princeton, the University of Virginia and Harvard share the walls with an action shot of Bellinger and Rice prepping for her testimony to the 9/11 Commission in the backseat of a limousine. But the most arresting display is a certificate, signed by President Bush, thanking the people who were at the White House on Sept. 11, 2011.

I asked him about that day. He recalls how Rice’s staff was filing into a morning meeting when they caught wind of the World Trade Center emitting a black plume on TV. Soon after, “somebody came in and passed a note to [Rice] that said a plane had hit the second tower, and she immediately left,” he said, “and we realized we were in the midst of a terrorist attack.”

When he took the National Security Council job in February 2001, Bellinger says he “signed up thinking I was going to work for a sort of extension of the Bush 41 administration.” He’d risen to prominence a little more than a decade earlier as a special assistant to William Webster, the CIA director during much of George H.W. Bush’s presidency.

“I expected I was mostly going to be dealing with trade issues and law enforcement issues,” said Bellinger, looking courtroom-ready in his starchy white button-down shirt, red-and-blue striped tie, gleaming oxfords and neatly parted hair. Instead, seven months later, Bellinger was hunkered down in the White House’s Situation Room, grappling over an almost inconceivable dilemma: “We were trying to figure out on the fly what legal authority the president would have to actually shoot down passenger aircraft that might be heading toward Washington,” he said.

“I remember standing out at 3 or 4 in the morning — at that point on September 12 — with one of my deputies under a streetlight on a deserted corner at 17th and Pennsylvania, realizing that the world had changed,” Bellinger said. “For the next eight years I became an expert on the law of war, and the Geneva Conventions and the use of force.”

In many ways, Bellinger was primed for this role. His father was an Army colonel who went on to work at the Office of the Secretary of Defense and his mother was a Russia analyst for the CIA. The younger Bellinger also served as a special counsel to the Senate Intelligence Committee and then as counsel on issues of national security in President Clinton’s Justice Department.

But after war struck in 2001, Bellinger soon clashed with other members of the Bush administration regarding matters of detention, torture and the wisdom of straying from international agreements and norms. According to Jane Mayer’s 2008 book “The Dark Side,” a group of Bellinger’s colleagues, who were referred to as “The War Council,” regarded him as too dovish, too circumspect about what they considered necessary expansions of executive power. They began whispering to each other, “Don’t tell John,” she wrote.

Bellinger admits he “is personally not a very partisan person” and calls himself a “chronic moderate,” which may have put him at loggerheads with some of the other personalities in the executive branch.

However, Bellinger bristles at the way the Bush administration sometimes has been cast as a monolithic slab. In a recent post on Lawfare, an influential national security blog, Bellinger chided President Obama for going “out of his way to blame and caricature the Bush administration” in a speech on counterterrorism to the National Defense University.

Later, I asked Benjamin Wittes, Lawfare’s co-founder and editor, whether or not the stark portrayals of the Bush administration have weighed on Bellinger, and if he believes Bellinger actively seeks to dispel some of the stereotypes.

“Look, I think it’s clearly a matter of sensitivity to him. People have painted with a very broad brush in talking about the Bush administration. [It] actually is a fairly diverse lot,” said Wittes, who wrote for the Washington Post’s editorial board during the Bush years. “There was a very significant debate within the Bush administration about the positions that it should and shouldn’t take. And different forces within those discussions prevailed at different times.”

By the same token, Bellinger is no pacifist or lefty. He has received plenty of criticism from liberals and human rights groups for Bush policies he helped craft — and for some of his more recent views, including accusations that he is actually seeking to dramatically expand the authorization for using force under the guise of revising it.

Bellinger tells me that he simply wants the rules for how we combat terrorism to be clearly codified and brought up to date through a democratic process and with regard to international commitments. He doesn’t believe the AUMF should be used as a sweeping legal justification for targeted drone killings in places like Pakistan and Yemen or indefinite detentions without trial in Guantanamo Bay. But he also doesn’t advocate for getting rid of the law altogether.

On that note, Bellinger took umbrage at what he called a “truly bizarre” New York Times editorial in March that recommended an immediate repeal of the law. “But they then stopped there and they didn’t say, ‘Well, what would be the legal basis for counterterrorism operations?’” Bellinger asked. “It seemed to be motivated by this naïve, childlike view.

“And one gets it. I used to say to my children before 9/11, you are living in this wonderful time. We have an expanding economy, you’re safe and your grandparents were in wars. I think all of us would like to go back to that. But you can’t just say, ‘Well, if we repeal the president’s authorization to use force, he’s going to stop using it and all of the terrorists are going to go home.’”

Likewise, Bellinger dismisses notions that the AUMF represents a calculated move by the Bush administration as part of some grand scheme. That view, he says, represents revisionist history seen through a partisan light.

“It was too soon after 9/11 for the Bush administration to have adopted any robust philosophy that maybe came about later on. If you look at that eight years later, you might say, Oh, this is the first inklings of the Bush administration trying to make a power grab.’ I think that it was too early for them to have even decided what they were doing.”

Instead, he sees a natural tendency throughout American history for the executive and legislative branches to tussle over the authority to wage war, and the crisis of 9/11 meant that the White House wanted as wide a berth as possible without the burden of having to come back to Congress to reauthorize future missions.

“The United States was basically dealing with an enemy which we had not faced before. I mean the traditional rules really didn’t fit very well, so we were trying to fit square pegs in round holes. In each case, decisions were made that sort of were off-base by five degrees. And if you make 20 decisions, all of which go off by five degrees, sooner or later you get pretty far off the mark.”

For example, he says trying detainees under military commissions made sense to some people in the administration at the time, even though he now calls that “one of our worst procedural decisions.”

“On the other hand, what they were trying to do is to say, ‘Well, the last time we had a group of unlawful combatants who were caught was during World War II, and we used military commissions then and it was upheld by the Supreme Court, so that’s the closest thing that we can find, so it ought to work now.’”

Guantanamo was conceived in a similar fashion, he says. “Our military commanders said you’ve got to get these people out of Afghanistan. Nobody was going to hold a group of terrorists inside the United States, so to hold them on an island that was essentially like Alcatraz near the United States seemed to be the reasonable thing to do. Of course, we now know what happened. It’s been a disaster for the United States. And when you look at a disaster, you tend to think, well, it should have been obvious from the start. But not all disasters are obvious from the start that they’re going to be disasters,” Bellinger said.

“The administration kept compounding its errors and had a really difficult time getting out of the hole that it had dug itself into,” he added. “I mean we really did try very hard in the second term.”

Bellinger in particular seemed to be on a personal mission after he was asked by Rice, then secretary of state, to represent the State Department in 2005.

A profile of Bellinger that appeared in Princeton’s alumni magazine in 2006 describes him as a “leading salesman” for an initiative by the Bush administration, led by the State Department, to shore up America’s standing abroad. At the time, Bellinger was crisscrossing the globe, reportedly traveling one week per month as part of “an aggressive public relations campaign aimed at convincing anyone who will listen that Americans aren’t a bunch of trigger-happy cowboys who view the world as their OK Corral,” wrote Kathy Kiely.

Bellinger recalls that during his foundational years in college and grad school, “many of the heroes in my life had been diplomats.” And today, it’s clear that Bellinger is a great believer in the power of explanation and dialogue.

In addition to Bellinger’s work at Arnold & Porter, he contributes analysis to Lawfare, has penned op-eds for the Post and New York Times, appears on C-SPAN, and holds a seat on the Council of Foreign Relations. He talks to reporters. He contributes amicus briefs to court cases. He is busy explaining law and policy seemingly every chance he gets, which not everyone in a profession that measures time in billable hours is inclined to do.

Bellinger says there’s an “earnest desire in me for people to understand.”

“When I became legal advisor [at the State Department], the Bush administration’s policies had become so deeply unpopular, but they also were really misunderstood. I felt we really needed to do a better job of explaining what we’re doing because in some cases the criticisms are right, but in other cases they’re just criticizing us for things that we’re not even doing, or that are unfair or because they don’t really understand it,” Bellinger said. “So even though I often disagreed with a lot of our policies, I still felt we needed to go out and explain them.”

“John has stayed very involved on the set of issues that he worked on both at the NSC and at the State Department, and he has a very well-developed set of thoughts on national security, international law, domestic law and the representation of the United States abroad,” said Wittes, Lawfare’s editor, adding that Bellinger has focused on the AUMF because so many of the policies being debated hinge on it.

Bellinger continues to press for revisions to the law, although in the wake of the 16-day government shutdown in October and today’s rampant political gridlock, he revealed a surprisingly resigned attitude about a system he’s long defended, in times thick and thin.

“As a matter of good government, I continue to believe, as I have for years, that we should revise the AUMF, which is now 12 years old and was written very rapidly after 9/11 and has covered all manner of things from detention to drone strikes to electronic surveillance — things that were not contemplated specifically at the time,” he told us.

“I have now come to the conclusion, though — and had really come to the conclusion before the shutdown, but certainly after the shutdown,” Bellinger added with a shrug and a tone of exasperation, “that we just can’t do good government anymore, and it’s sadly better to maybe leave an outdated law on the books, rather than to try to open up a can of worms.”

About the Author

Luke Jerod Kummer is the congressional correspondent for The Washington Diplomat.