Fox News attacked the Obama administration's reluctance to sidestep legal considerations that prevent the government from indiscriminately waging war without congressional approval and suggested that it was possible for the military to "just get the SOBs who killed our people."
On January 13, the House Armed Services Committee released a series of declassified transcripts of briefings on the September 11, 2012, attacks on an American diplomatic facility in Benghazi, Libya. The review debunked right-wing myths about the attack and further revealed that the administration has been hampered in its efforts to bring the perpetrators to justice because of the legal limits imposed by the Authorization for Use of Military Force (AUMF), which authorizes military action against al Qaeda and its "associated forces." According to the Senate report's transcript of Chairman of the Joint Chiefs General Martin Dempsey's October 10, 2013 testimony, the attack's leaders do not fall under AUMF's authority:
DEMPSEY: Well, first of all, the individuals related in the Benghazi attack, those that we believe were either participants or leadership of it are not authorized use of military force. In other words, they don't fall under the AUMF authorized by the Congress of the United States. So we would not have the capability to simply find them and kill them, either with a remotely-piloted aircraft or with an assault on the ground. Therefore, they will have to be captured, and we would, when asked, provide capture options to do that.
Fox News reported on this revelation during the January 17 edition of Fox News' Fox & Friends. Co-host Steve Doocy dismissed the legal constraints by claiming that the administration has "too many lawyers on the staff." Responding to co-host Elisabeth Hasselbeck's complaints that the rules are "awfully wordy" and "disheartening," guest host Clayton Morris claimed that "it doesn't make any sense" suggesting that it could be "some sort of excuse [...] for not having any assets in the area."
During the January 17 edition of Fox & Friends Hasselbeck and Fox's Geraldo Rivera downplayed the need for the AUF restrictions and claimed that the Obama administration's adherence to them constituted a politicization of the attacks. Rivera suggested Obama put aside "politics" by ignoring AUMF and "go get the SOBs who killed our people." From the show (emphasis added):
HASSELBECK: When things are ever-evolving, in terms of al-Qaeda and the changes that take course, it seems as though it evolved, and therefore this should also evolve, right in terms of who is approved and authorized.
RIVERA: You're being much too logical, Elisabeth, because to say that Ansar al-Sharia is al-Qaeda is to say that the Benghazi tragedy where Ambassador Stevens and the others were killed was an al-Qaeda operation. The politics of this country is such that we are divided now. Was it an al-Qaeda operation, was it a spontaneous militia --activity that grew out of the reaction to this anti-Muslim film --
CO-HOST STEVE DOOCY: The Senate said last week it was al-Qaeda-related.
GERALDO: Well now we have to convey that to our military leaders, and say, listen, as Congressman Peter King is now suggesting, for the purposes of the Authorization of Military Force[s] Act, we believe now that the people that killed our ambassador in Benghazi and our other three heroes was an al-Qaeda operation. Just for that. No more politics. Put it aside. Let's just get the SOBs who killed our people, get them with the best force we have, and that's the SEAL teams and drone strikes.
But Fox's assertion that the administration's concerns are "political" and that AUMF standards could be stretched to apply to any foreign actors perceived as a threat fundamentally misunderstands the legal constraints placed on the president by congress.
As The New York Times explained, the language of the original AUMF is limited, focusing specifically on the actors that "planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001":
It gives the president the power to attack "nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
In early 2013, The Washington Post reported that administration officials have become increasingly concerned about the legality of continuing to rely on the 2001 document in responding to an increasingly decentralized threat (emphasis added):
The authorization law has already been expanded by federal courts beyond its original scope to apply to "associated forces" of al-Qaeda. But officials said legal advisers at the White House, the State Department, the Pentagon and intelligence agencies are now weighing whether the law can be stretched to cover what one former official called "associates of associates."
The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda's agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. They could be exposed to drone strikes and kill-or-capture missions involving U.S. troops.
Officials said they have not ruled out seeking an updated authorization from Congress or relying on the president's constitutional powers to protect the country. But they said those are unappealing alternatives.
The authorization makes no mention of "associated forces," a term that emerged only in subsequent interpretations of the text. But even that elastic phrase has become increasingly difficult to employ.
In a speech last year at Yale University, Jeh Johnson, who served as general counsel at the Defense Department during Obama's first term, outlined the limits of the AUMF.
"An 'associated force' is not any terrorist group in the world that merely embraces the al-Qaeda ideology," Johnson said. Instead, it has to be both "an organized, armed group that has entered the fight alongside al-Qaeda" and a "co-belligerent with al-Qaeda in hostilities against the United States or its coalition partners."
Moreover, the Post report highlighted that administration officials and independent experts' shared concerns about the legality using the authorization to target Ansar al-Sharia in Libya. Harvard national security law expert Jack Goldsmith said that tying the AUMF to groups like Ansar al-Sharia would be "a major interpretive leap" and stated that the "[t]he AUMF is becoming increasingly obsolete because the groups that are threatening us are harder and harder to tie to the original A.Q. organization."
The lack of nuance in Fox's attacks are nothing new for the network. Fox consistently prefers overhyped misinformation to evidence-based findings. The network has previously denied the findings of a lengthy investigation by The New York Times' David Kirkpatrick, which definitively debunked the myth that al Qaeda played a central role in planning the attack.