As I noted prior to the President’s speech on Wednesday night, outside of a small group of dissenters, Congress apparently has no desire at all to weigh in on the issue of military action against ISIS/ISIL/IS notwithstanding the fact that it seems clear that, as a matter of law, they really ought to be doing so. For its own part, the Administration is unsurprisingly willing to accept this Congressional deference and, when confronted with questions about the legality of whatever military actions the President may authorize over the coming months and years, the Administration is asserting that it has all the legal authority that it needs thanks to the Authorization For Use Of Military Force that Congress passed nearly thirteen years ago in the wake of the September 11th attacks:
In the space of a single primetime address on Wednesday night, Barack Obama dealt a crippling blow to a creaking, 40-year old effort to restore legislative primacy to American warmaking – a far easier adversary to vanquish than the Islamic State. Obama’s legal arguments for unilaterally expanding a war expected to last years have shocked even his supporters.
Ahead of Wednesday’s speech the White House signaled that Obama already “has the authority he needs to take action” against Isis without congressional approval. Obama said he would welcome congressional support but framed it as optional, save for the authorisations and the $500m he wants to use the US military to train Syrian rebels. Bipartisan congressional leaders who met with Obama at the White House on Tuesday expressed no outrage.
The administration’s rationale, at odds with the war it is steadily expanding, is to forestall an endless conflict foisted upon it by a bloodthirsty legislature. Yet one of the main authorities Obama is relying on for avoiding Congress is the 2001 wellspring of the war on terrorism he advocated repealing only last year, a document known as the Authorization to Use Military Force (AUMF) that few think actually applies to Isis.
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According to several administration officials over the years, Obama has been wary that Congress will offer up new laws that entrench and expand an amorphous war that, in his mind, he has waged with the minimum necessary amount of force. Obama last year advocated the eventual repeal of the 2001 authorisation – as well as the 2002 congressional approval of the Iraq war – to aid in turning a page on a long era of US warfare.
Yet on Wednesday a senior administration official told reporters that the 2001 authorisation covered the war against Isis. Legal scholars have already debated its coverage of al-Qaida affiliates that did not exist in 2001. Isis, however, is not an al-Qaida affiliate, having been specifically disavowed by al-Qaida’s leader, Ayman Zawahiri. Ken Gude of the liberal Center for American Progress, a thinktank close to the administration, tweeted that he was “utterly shocked” the administration would contend the 2001 authority applied – an argument he had earlier in the day called “laughable.”
Asked to explain the administration’s reasoning, a different senior US official acknowledged the “split” between al-Qaida and Isis but indicated the administration considered it legally immaterial. In an email, using the administration’s preferred acronym for Isis, the official wrote:
Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against Isil dating back to the time the group first affiliated with AQ in 2004; and Isil’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy, the President may rely on the 2001 AUMF as statutory authority for the use of force against Isil, notwithstanding the recent public split between AQ’s senior leadership and Isil.
When I first heard that the Administration was relying upon a Bush Administration era AUMF as the legal justification for expanded military activity against ISIS, for some reason I thought that the correspondent on the news was referring to the AUMF that authorized the 2003 Iraq War. Given the fact that this authorization was specifically directed at Saddam Hussein and the issue of weapons of mass destruction, such an argument would be legally convoluted to say the least. The situation isn’t much better, though, with the Administrations reliance on the authorization that was passed nearly unanimously in the wake of the September 11th attacks. As noted above, that authorization specifically mentioned the organizations and person responsible for the attacks themselves as well as the nations that harbored them. In the 13 years that have followed, that broad grant of authority has been used to justify action far beyond Afghanistan, including attacks in Pakistan, Yemen, Somalia and elsewhere. Since the resolution did not specifically limit the President’s authority to war in Afghanistan, and since there has been at least some tangential connection between the targets attacked in those countries and the “core al Qaeda” that was behind the September 11th attacks, one could at least say that there was some legal veneer to what the President was doing, although it’s worth noting that even the President himself has suggested as recently as a year ago that perhaps it was time for Congress to reconsider the broad grant of authority given in that original AUMF passed in the wake of a terrorist attack.
While you can make at least a plausible argument that American military action in Pakistan, Yemen, and Somalia has some legal justification under the 2001 AUMF, though, you cannot say the same thing about military action against ISIS/ISIL/IS. While it’s true that, in some sense, the group has root connections with al Qaeda in that it has evolved out of what used to be known as al Qaeda In Iraq, which was one of the main combatants during the chaos of post-war Iraq, at this point in time there is absolutely no connection between al Qaeda and ISIS and, indeed, as Ankit Panda notes in The Diplomat, the two groups have fundamentally different strategic goals:
The two groups have a deep philosophical disagreement about the priorities of global jihad (as even the official in the above email notes). To oversimplify, Al Qaeda sees its first target as Western governments and others who prop up secular Arab dictators, Israel, and other non-Sunni leaders in the Muslim world. ISIS, meanwhile, has focused its efforts on establishing a caliphate first and using its strength to directly fight the governments it deems unfit for rule (this includes Syria’s Bashar al-Assad and Iraq’s deeply Shia-dominated government). Yes, ISIS was at one point known as “Al Qaeda in Iraq,” but in September 2014, it is an entirely separate entity that is diametrically opposed to Al Qaeda in many ways-even engaging in skirmishes with Jabhat al-Nusra, Al Qaeda’s wing in Syria. It is simply not an “associated force” in terms of the 2001 AUMF.
Given this, using the 2001 AUMF to authorize further military action against ISIS is an act of legal legardamain equivalent to the best work that the Bush White House did to justify everything from warrantless wiretapping, waterboarding, extraordinary rendition, and endless detention of suspected terrorists at Guantanamo Bay. One could even say that, in this case, the Obama Administration has gone beyond the Bush Administration in its efforts to pervert the law to justify military action, while at the same time explicitly rejecting the idea of obtaining authorization from Congress, authorization that would likely be granted giving the frenzy of panic that currently exists in the United States over the alleged threat that ISIS poses to the United States.
Yale Law Professor Bruce Ackerman calls the President’s unilateral decision to go to war against ISIS a betrayal of the Constitution:
President Obama’s declaration of war against the terrorist group known as the Islamic State in Iraq and Syria marks a decisive break in the American constitutional tradition. Nothing attempted by his predecessor, George W. Bush, remotely compares in imperial hubris.
Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.
This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.
But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.
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Senators and representatives aren’t eager to step up to the plate in October when, however they decide, their votes will alienate some constituents in November’s midterm elections. They would prefer to let the president plunge ahead and blame him later if things go wrong. But this is precisely why the War Powers Resolution sets up its 60-day deadline: It rightly insists that unless Congress is willing to stand up and be counted, the war is not worth fighting in the name of the American people.
If Mr. Obama changes course, as he did last September, and submits to the commands of the War Powers Resolution, Congress can demonstrate that, despite all its dysfunction, it can still rise to the occasion. There are hawks and doves on both sides of the aisle, and leaders of both parties havesignaled a willingness to engage in a serious debate.
But for now the president seems grimly determined to practice what Mr. Bush’s lawyers only preached. He is acting on the proposition that the president, in his capacity as commander in chief, has unilateral authority to declare war.
In taking this step, Mr. Obama is not only betraying the electoral majorities who twice voted him into office on his promise to end Bush-era abuses of executive authority. He is also betraying the Constitution he swore to uphold.
This wouldn’t be the first time that the President has acted without Congressional authorization, of course. Three years ago, he committed the United States to supporting the NATO effort to intervene in the Libyan civil war based solely on a series of United Nations Resolutions, and while he did provide Congress with the notices required under the War Powers Act, it was clear that the Administration intended to ignore the calls that they seek specific Congressional authority for the mission. One year ago, the President was on the verge of ordering air strikes against the Assad regime in Syria based on the use of chemical weapons, only to back down amid complaints from Members of Congress from both parties, widespread public disapproval for the mission itself and for the President’s decision to bypass Congress. This time around, it doesn’t appear that the President will face the same public pressure. Thanks largely to the beheading of two Western journalists and the reports of ISIS attacks on religious and ethnic minorities in Iraq, the American public seems to be strongly behind the idea of expanding the attacks on ISIS and convinced that ISIS represents a clear and present danger to the United States itself even though there is no evidence of that at all. Despite that support, though, the President makes a mistake by ignoring the clear Constitutional and legal authority here that makes it clear that he needs to seek Congressional approval before proceeding further.
This is not to suggest, of course, that Presidents must always seek Congressional action before acting. If American military forces, American diplomats, or Americans citizens are attacked overseas or if there is clear evidence of an imminent threat to the homeland, the Constitution gives the President broad authority to act as Commander in Chief, and even the War Powers Act recognizes this reality. This isn’t the situation that we find ourselves in, however. Even if we accept the President’s rationale for the initial round of attacks on ISIS targets that it was necessary to prevent harm from coming to the American diplomats and others in the area around Mosul, what is being suggested now is an expansion of our military mission far beyond protection of Americans. This is evidenced quite clearly by the President’s own pledge to “degrade and destroy” ISIS. In another time, that would be considered a declaration of war, and declarations of war rather obviously require Congressional authorization.
The position that President Obama takes today is far different from the one that he took as a candidate, when differentiating himself from the unpopular policies of the Bush Administration were a high priority. In December 2007, for example, the President had this to say:
2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)
The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.
As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.
Similarly, in an August 2007 speech, he said that the American people had the right to know before military action is taken in their name, and the man who would become his Vice-President said that a President who took non-defensive military action without Congressional authorization would be a candidate for impeachment. As with many people who have run for President, though, Barack Obama changed his views on Executive Power significantly once he actually came into office. One wonders what Senator Obama would think about that. At the very least, I had have to think that he would be skeptical of the Administration’s efforts to use a Congressional resolution drafted in the wake of a terrorist attack that took place thirteen years ago yesterday to justify an escalation of American military involvement that even Administration officials are saying could take years, likely lasting well into the term of Mr. Obama’s successor. What the President is doing now is an affront to the law and the Constitution.
