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A group of seven Yemeni-Americans from Lackawanna, New York, go to train in Afghanistan (see April-August 2001). Just two days after some of them have arrived, two of the seven—Sahim Alwan and Jaber Elbaneh, plus their mentor Kamal Derwish, briefly meet Osama bin Laden in a small group setting. One of the men asks bin Laden about a rumor that something big is about to happen. Bin Laden responds: “They’re threatening us. And we’re threatening them. But there are brothers willing to carry their souls in their hands.” [Temple-Raston, 2007, pp. 107-108] A couple of weeks later, the seven Lackawanna men and Derwish begin training at the Al Farooq training camp near Kandahar. One day, bin Laden and Ayman al-Zawahiri come to their camp and bin Laden gives a speech in Arabic to the hundreds of trainees there. The crowd is told the speech is being videotaped. In his 20-minute speech, he discusses the merger between al-Qaeda and Islamic Jihad. At the end, he calls on the gathering to pray for the 40 operatives who are en route for a very important mission. He drops hints about suicide operations against the US and Israel. One of the seven men, Yaseinn Taher, speaks Arabic well enough to understand the speech, and explains the gist of it to the other six. The Lackawanna men also sense a mood in the camp that something big is going to happen soon. For instance, the camp is regularly conducting evacuation drills in anticipation of the US bombing it. [Temple-Raston, 2007, pp. 117-120] One by one, all the members of the group except for Jaber Elbaneh drop out and go home before their basic training course is done. They will later be known as the “Lackawanna Six.” But none of the six tell any US authorities what they learned when they get back to the US before 9/11. Some of the six, such as Taher and Alwan, will later say that on the morning of 9/11 they realize the attack they are watching on television is what bin Laden was talking about when he discussed the 40 men on a suicide mission. [Temple-Raston, 2007, pp. 136-138]
John Yoo. [Source: University of California, Berkeley]In a secret 15-page memo to Deputy White House Counsel Timothy Flanigan, Justice Department lawyer John Yoo, a deputy in the Office of Legal Counsel, reasons that it is “beyond question that the president has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks” of 9/11. Those actions can be extensive. “The president may deploy military force preemptively against terrorist organizations or the states that harbor or support them,” Yoo writes, “whether or not they can be linked to the specific terrorist incidents of Sept. 11.… Force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon.” The memo is solicited and overseen by White House lawyers.
Power Derives from Constitution, Congressional Authorization for War - This power of the president, Yoo states, rests both on the US Congress’ Joint Resolution of September 14 (see September 14-18, 2001) and on the War Powers Resolution of 1973. “Neither statute, however, can place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” (Most experts believe that the Constitution strictly limits the president’s power to declare and conduct war—see 1787).
Power More Extensive than Congress Authorized - Yoo argues further that the September 14 resolution does not represent the limits to the president’s authority. “We think it beyond question” that Congress cannot “place any limits on the president’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.” Congress’s “Joint Resolution is somewhat narrower than the president’s constitutional authority,” Yoo writes, as it “does not reach other terrorist individuals, groups, or states which cannot be determined to have links to the September 11 attacks.” The president’s broad power can be used against selected individuals suspected of posing a danger to the US, even though it may be “difficult to establish, by the standards of criminal law or even lower legal standards, that particular individuals or groups have been or may be implicated in attacks on the United States.” Yoo concludes: “[W]e do not think that the difficulty or impossibility of establishing proof to a criminal law standard (or of making evidence public) bars the president from taking such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks. In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”
'Unenumerated' Presidential Powers - Yoo even asserts that the president has more power than his memo claims: “[T]he president’s powers include inherent executive powers that are unenumerated in the Constitution,” including but not limited to the power to take the country to war without Congressional input. [US Department of Justice, 9/25/2001; Savage, 2007, pp. 121-122]
Memo Remains Secret for Three Years - The contents of this memo are not disclosed until mid-December 2004. [Newsweek, 12/18/2004; Newsweek, 12/27/2004]
Scott Horton. [Source: HBO]Scott Horton of the New York City Bar Association says that investigations by the Pentagon “have a reputation for tending to whitewash, but even taking this into account, the current investigations seem to be setting new standards.” He adds: “Rumsfeld has completely rigged the investigations. My friends say we should expect something much akin to the army inspector general’s report—
‘just a few rotten apples.’” [Guardian, 9/13/2004]
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