Unless Congress Steps In To Authorize It, The President’s War Against ISIS Is Illegal

As things stand right now, there is no legitimate legal authorization for the President's war against ISIS, and that's largely because Congress has failed to act.

Barack Obama

In testimony earlier this week before a Congressional Committee, Chairman of the Joint Chiefs of Staff General Martin Dempsey said that he could not rule out recommending to the President that the United States send ground troops to fight alongside Iraqi forces in the war against ISIS in Iraq:

President Obama’s top military adviser said Thursday that he would consider deploying a limited number of United States forces to accompany Iraqi troops on complex offensive operations to retake Mosul and other areas under control of Sunni militants.

Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff, told the House Armed Services Committee that Iraqi troops — who initially fled under the onslaught of Islamic State militants — are now doing a better job of standing and fighting. But he added that he could not foreclose the possibility that as operations against the Sunni militants move into more complex phases of clearing out cities and other areas by the Islamic State, American troops might have to help their Iraqi counterparts.

“I’m not predicting at this point that I would recommend that those forces in Mosul and along the border would need to be accompanied by U.S. forces, but we’re certainly considering it,” General Dempsey said. Defense officials said that American Joint Tactical Attack Controllers could be used to call in airstrikes from tactical positions on the ground, most likely behind Iraqi forces. The tactical attack controllers often deploy in positions like hills and other high terrain so they can see operations and call in strikes.

General Dempsey did say that he did not anticipate expanding the American military presence in Iraq beyond what he called a modest force. “I just don’t foresee a circumstance when it would be in our interest to take this fight on ourselves with a large military contingent,” he said.

(…)

The congressional testimony on Thursday underscored the challenge facing Mr. Obama as he continues to insist to a war-weary public that the United States is not returning to ground combat in Iraq. He has maintained that American ground troops will not be used, even as his generals have increasingly hinted that there may not be a way to defeat the Sunni militant group without at least some American forces, particularly to call in airstrikes.

The Los Angeles Times has more details:

Hagel said more than $3.4 billion would support U.S. military operations, while $1.6 billion would help pay for training and equipping Iraqi forces. The remaining money would go to the State Department.

Hagel said that Iraq’s military, which was routed by the militants earlier this year, won’t be an effective fighting force unless it has more support from the new central government in Baghdad.

The United States will withhold some money until the Iraqi government and coalition partners provide at least $600 million of their own, he said.

“The Iraqi government must invest in its own security and its own future,” Hagel said. “We cannot ensure a stable Iraq. The Iraqi people are going to have to do that themselves.”

The United States has shipped more than $685 million in equipment and supplies to Iraq in the current campaign, he said. The lethal equipment includes grenades, small arms, tank ammunition and air-to-ground Hellfire missiles.

Defense hawks on the committee pressed the pair for stronger action.

“The Iraqi government must invest in its own security and its own future,” Hagel said. “We cannot ensure a stable Iraq. The Iraqi people are going to have to do that themselves.”

The United States has shipped more than $685 million in equipment and supplies to Iraq in the current campaign, he said. The lethal equipment includes grenades, small arms, tank ammunition and air-to-ground Hellfire missiles.

Defense hawks on the committee pressed the pair for stronger action.

As I’ve said before, the fact that people like Dempsey and Hagel are acknowledging that they are not ruling out certain recommendations to the President is, in and of itself, not surprising, shocking, nor particularly newsworthy. After all, their jobs are supposed to be to provide the President with the alternatives available to him based on the circumstances that the nation faces on the ground in the given conflict. To consciously decide that they are not going to recommend something to the President — even in a case where the President has explicitly stated that he doesn’t want to consider that course of action — would arguably constitute dereliction of duty on their part. Ultimately, the decision about what course of action to follow belongs with the President, and it seems important that he have before him all the conceivable options before he does so, especially when it comes to something as consequential as committing, or not committing, American military forces to combat under circumstances that, in all likelihood, would set forces in motion that will lead to more American forces being required to commit the original task.

That being said, and as I’ve said before when General Dempsey and Army Chief of Staff Ray Ordinero have made similar comments about the commitment of American ground forces to this conflict, even in an initially limited role, the fact that these possibilities are obviously being actively considered raises real concerns about the cavalier attitude that the Administration has displayed toward consulting with Congress about the path forward and the need for Congressional authorization to do so. To date, the Administration continues to rely upon the argument that the Authorization for the Use of Military Force that was passed by Congress in the wake of the September 11th attacks is sufficient legal basis for them to proceed forward with the President’s war against ISIS without seeking further authorization. This argument, however, relies largely on the fact that ISIS, which used to be called Al Qaeda in Iraq, is an “al Qaeda off-shoot,” and therefore that actions against this group are covered by the the AUMF’s general authorization to proceed against those responsible for the attacks, and anyone affiliated with them. While perhaps technically true, this argument ignores the fact that there has not been any kind of direct connection between al Qaeda and ISIS for years now, and that the groups in fact consider each other to be rivals at this point. Given those facts, the idea that Congressional action taken thirteen years ago in response to an attack on American soil by a specific group authorizes the ever expanding war against ISIS rests on the most tenuous, and difficult to accept, of legal threads.

For the most part, Congress seems to be ignoring its Constitutional responsibility to weigh in on the President’s war against ISIS, but there are some signs that this may be changing. Kentucky Senator Rand Paul, for example, argued in The Daily Beast this week that, at present, the war against ISIS is illegal:

Yale Professor Bruce Ackerman puts it succinctly: “The war against the Islamic State is now illegal. The War Powers Resolution of 1973 gave President Obama 60 days to gain consent from Congress and required him to end ‘hostilities’ within 30 days if he failed to do so. This 90-day clock expired this week.” And yet, there’s been no consent, and no end to the fighting.

I believe the president must come to Congress to begin a war. I also believe the War Powers Act is misunderstood; President Obama acted without true constitutional authority even before the 90 days expired, since we were not under attack at that time.

But in either case, this war is now illegal. It must be declared and made valid, or it must be ended.

Congress has a duty to act, one way or the other.

Virginia Senator Tim Kaine, a Democrat, agrees although he focuses more on the AUMF issue than the War Powers Act:

Sen. Tim Kaine said Wednesday there’s no legal authority for the current U.S. mission against ISIS in Iraq and Syria.

“We have been engaged in a war — that is not about imminent defense of the United States — without legal authority,” the Virginia Democrat said at the Wilson Center on Wednesday, ahead of a panel discussion on the legal authority for military intervention, moderated by CNN’s Jim Sciutto.

The mission is not covered by either the wording or intent of the 2001 and 2002 authorizations for use of military force as the White House argues, Kaine said, adding that such an argument is “ridiculous” and inconsistent with President Barack Obama’s previously stated interpretation of the AUMF.

Kaine, a member of the Senate Foreign Relations Committee, has proposed a new, limited authorization, specifically targeted to the current mission against ISIS. “We should deal with it right away,” he said, stressing that it could be accomplished in the lame-duck session in Congress.

He’s also calling for changes to the War Powers Resolution that will result in a “better process” for war authorization.

In a statement last week, Kaine said he was “encouraged” by Obama’s recent willingness to work with Congress on a new authorization, but also “troubled by suggestions today that Congress should wait until the new Congressional session in 2015 to take this vote.”

“We have already asked too many U.S. service members to risk their lives without a political consensus behind this mission,” he added.\

Kaine and Paul are, of course, absolutely correct. Under the timetable set forth in the War Power Act, the President is now well beyond the authority that law grants him, and, as I note above, the argument that the 2001 AUMF somehow authorizes the present operation in Iraq quite simply has no merit. Of course, given the way that these matters actually work, that is only half the battle. The War Powers Act is not self-enforcing, and no Court is going to step in to enjoin a President from proceeding forward in a situation like this. The ball is, in the end, in Congress’s court. As has been the case in the past, most notably with the President’s decision to bypass Congress entirely during the war in Libya, Congress can either ignore this matter entirely and continue to authorize the Pentagon’s budget requests without any real debate about American strategy going forward in Iraq and Syria, or it can have a debate about the matter and put forward an authorization for the membership of both chambers to vote on. Preferably, this is an authorization that would be thoroughly debate and voted on by the new Congress when it convenes in January, because it strikes me as improper for a Congress made up of people who are retiring or who were defeated in their re-election bids to be making a decision of this sort. Of course, there could have been a debate and vote before the election, but neither party, and neither chamber of Congress was willing to stick their neck out and take responsibility for the duty the Constitution has conferred upon them. Until that happens, though, the Presidents war is going to continue unchecked. And the only body responsible for that unacceptable development is Congress itself.

FILED UNDER: Barack Obama, Congress, National Security, Politicians, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    The war is going rather well for us and Mr. Obama’s strategy looks pretty good right now. (Of course this is the Middle East, so things that are going well have a distinct tendency to stop going well.) So this will be quite a dilemma for Republicans in Congress. If they force a pull-out they’ll have taken the responsibility for what follows.

    And Dems have their own problems – many are unable to differentiate between this fight and Mr. Bush’s Iraq invasion, between a real threat and an invented one.

    Those opposed need to ask themselves the most basic question: ISIS running Saudi Arabia, good thing or bad thing? Because the ISIS leadership has designs on the entire region, very much including the KSA. And a recent poll shows Saudis least opposed to ISIS among Arab populations. Can the rancid Saudi royal family and their “army” stop an ISIS with a strong 5th column in their country?

    What would an ISIS-run Saudi Arabia do? First, it would obliterate any possibility that Iran would put off going nuclear. There’s no way in hell the Ayatollahs can avoid building bombs if Al-Baghdadi and his murderous crew are in charge. And then the “Caliph” would have to respond in kind, so we get a nuclear middle east.

    Of course the Israelis would be extremely likely to act against a nuclear ISIS state and we’d have very little we could say in response. These people are not the Iranians, arguments about deterrence would be nonsense.

    So, if we pull out, and if the locals are unable to stop ISIS, there’s an excellent chance that they take Saudi Arabia, become guardians of Mecca, and come to dominate the entire Arab world east of Suez.

    I think letting that happen would be insane.

    The smart thing to do is not to follow the US army’s advice to go in guns blazing because if we do that we pre-empt any serious effort by the locals (Kurds, Jordanians, Saudis) to manage things on their own. And long-term we need the locals to get their sh!t together. We need them to survive until they can get their sh!t together. Which would argue for a strategy that uses minimal necessary US force – which is where we are right now.

  2. Jack says:

    @michael reynolds:

    If they force a pull-out they’ll have taken the responsibility for what follows.

    In the same manner that Obama and the Democrats took responsibility for what followed the original pull out driven by Obama? Yeah, I’ve seen zero responsibility taken for that by the Dems or Obama.

    between a real threat and an invented one

    And ISIS has attacked America when? Was I asleep when that happened?

    Those opposed need to ask themselves the most basic question: ISIS running Saudi Arabia, good thing or bad thing? Because the ISIS leadership has designs on the entire region, very much including the KSA.

    Unlike Saddam Hussein who had zero aspirations for other countries’ wealth and oil. Oh, wait…

    So, if we pull out, and if the locals are unable to stop ISIS, there’s an excellent chance that they take Saudi Arabia, become guardians of Mecca, and come to dominate the entire Arab world east of Suez.

    That’s quite a feat. Steamrolling Saudi Arabia and pushing back whimpy Iraqi regulars is just a tad different.

    To quote Owl Gore “He betrayed this country!” Mr. Gore shouted into the microphone at a rally of Tennessee Democrats here in a stuffy hotel ballroom. “He played on our fears. He took America on an ill-conceived foreign adventure dangerous to our troops…”

    It sounds like Obama and you are doing much of the same.

  3. Slugger says:

    This is a golden opportunity for Mr. Boehner to assert his authority and the tremendous electoral victory that his party has recently achieved. After all, politics is not just a football game where you go for some beers and chicken wings after the win; this is a chance to take responsibility.
    A plan for healthcare and a solution for immigration issues would be cool also.
    But wait…someone climbed the White House fence; this must be condemned and investigated, in that order, as soon as we finish our Benghazi hearings.

  4. Davebo says:

    @michael reynolds:

    ISIS running Saudi Arabia is not a realistic possibility in the real world. To think it is reflects a complete lack of familiarity of the Kingdom.

    As to a nuclear middle east, it already exists and has for decades.

  5. michael reynolds says:

    @Davebo:

    It’s completely unrealistic to think ISIS would in a matter of weeks take over huge swathes of Iraq and Syria. Iraq, after all, had a US-trained, US-equipped army. Right?

    What is unrealistic about imagining that the Islamist homeland, the financier of Al Qaeda and ISIS, a country with a monarchy with dubious support, a country with vast open deserts, a country whose army has not fought a serious war since Lawrence’s day, might be toppled?

    They don’t need to take the whole country, they just need Mecca.

    Yes, Saudi Arabia has a competent air force, but it’s not the USAF, and we keep hearing that air power alone can’t stop ISIS. And how loyal are the average Saudi soldiers? How well would Salafist Saudi troops with virtually no experience of actual combat hold up under attack by a group with whom they have great sympathy? Will they die for their princelings?

    Have you seen this poll? 16% of Saudis “strongly support” a war on ISIS, with another 34% supporting, and 45% total opposed to a greater or lesser degree. That’s an essentially even split. Half of all Saudis seem not to have much of a problem with ISIS. How loyal are they to the Saudi Royal Family?

  6. Stonetools says:

    Doug, you do know that the Republicans are far more pro this war than the Obama Administration, right? Remember when you crowed that this war was a repudiation of Obama’s policies? Well, guess which policy they fully support and want to see pushed even more aggressively? Be careful what you wish for.
    The Republicans are not only not going to rein in Obama on the ISIS war, they are going to insist he go even further.

  7. al-Ameda says:

    @Stonetools:

    Doug, you do know that the Republicans are far more pro this war than the Obama Administration, right? Remember when you crowed that this war was a repudiation of Obama’s policies? Well, guess which policy they fully support and want to see pushed even more aggressively? Be careful what you wish for.

    Republicans were all but accusing Obama of appeasing Muslim Terrorists

  8. Davebo says:

    @michael reynolds:

    Polling in KSA is, to be blunt, useless. Honestly public opinion in the Kingdom is nearly irrelevant. If you think ISIS has even a sliver of a chance of controlling Mecca you’re just not being serious.

    KSA is not Iraq or Syria. We gave them the foothold in Iraq to begin with and you of all people know that.

  9. wr says:

    @Jack: How convenient that “Jack” shows up just as “Will” has been shamed off the forum as an obvious Jenos sock puppet.

  10. Jack says:

    @wr: I’ve been here for years and we’ve had our own battles, cupcake.

  11. Gustopher says:

    If a lame duck congress cannot confirm the president’s nominee for attorney general, then I don’t know why we would want them deciding a war. But, it should be on the agenda of the next congress. They would really enjoy a hard vote.

    In the meantime, if the president says the operations are covered by the AUMF, and congress doesn’t object, can we really say that the war is illegal?

  12. Liberal Capitalist says:

    Unless Congress Steps In To Authorize It, The President’s War Against ISIS Is Illegal

    Continuing on the theme of “If he’s for it… then we are gol-derned against it ! ” …

    … the GOP will surely now come out and say how ISIS is the spiritual brothers of American Conservatives, and that they cannot support Obama’s war against these fine people.

  13. michael reynolds says:

    @Davebo:

    LONDON — Saudi Arabia has employed Pakistan to enhance internal security for the Gulf Cooperation Council kingdom.

    Diplomats said the Saudi royal family has been working with Pakistan to bolster security in the GCC state. They said Pakistan would supply trained personnel for most of the Saudi armed forces, including police and National Guard.

    I want to believe you, but I will not put my trust in an army that is spiritually in tune with its enemy, is led by entitled royal brats, has not fought a serious enemy in its entire existence and is reduced to hiring Pakistanis to keep functioning.

    If you’re a Saudi army private, (let a lone a Pakistani hireling) why are you going to die for the king and his harem? In the first Gulf War the Saudis were useless – they rely on foreigners to do basic maintenance and handle a lot of logistical stuff because Saudis are too poorly-educated to function in a modern army. They fought to retake Ras Al Khafji and sucked at it. Their tanks broke down because they didn’t know how to change a filter.

    There’s the National Guard, which is a defensive force, but with lousy transport and no training in mobile warfare what are they going to do? You think the princes will send their palace guard chasing off across the desert to fight ISIS? They’ll use that force to keep the airport safe while the royals jump on their private jets and skeddadle off to Harrods.

    ISIS took Mosul against the US-trained, US-equipped Iraqi army and the Peshmerga. So why would I believe that in the absence of US air power they can’t take Mecca against US-trained, US-equipped Saudis? Remember, ISIS is getting its ass kicked in Kobani only because of the amazing courage and dedication of Kurdish “communists” and because US airpower stops ISIS being able to concentrate forces. How well would Kobani be doing if they were defended by Saudi draftees, half of whom will think they’re acting against Islam, and lacked air-cover?

    History is too full of examples of things that couldn’t be done in war and yet were. The fact that ISIS is motivated, well equipped, well-financed, and has a stated intention of taking over Saudi Arabia, makes me disinclined to be glib.

  14. michael reynolds says:

    @wr:

    “Cupcake.” Hah! It is him. Always the diminutives and the snarky nicknames. It’s his only move.

  15. Paul Hooson says:

    The American government had better get all of their ducks in a row to use military muscle against this very serious threat. It makes no sense at all to allow such a dangerous and radical force to consume the Mideast region.

  16. Jack says:

    @michael reynolds: I call em’ like I see em’.

  17. Davebo says:

    @michael reynolds:

    We’ll just have to agree to disagree.

  18. Jenos Idanian #13 says:

    wr, you’ve falsely accused me of sock-puppeting before, and you’ve had your nose rubbed in it every. Single. Time. And this time is no different. Suck it up, ‘buttercup.”

    But since you’re so damned interested in my opinion on this, I’ll chime in: President Obama had a legal responsibility to report to Congress and seek authorization at the 60-day mark. Back when he was Senator Obama, he was a fierce champion of the War Powers Act. Once he was on the other end of it, he assumes it doesn’t exist.

    If Obama wants to keep fighting ISIS (which I think he should, BTW), he should be willing to at least ask Congress to go along. Right now, he’s living out the whole self-fulfilling prophesy thing. “I could ask Congress for approval, but they’d just say no, so I won’t bother asking them, and it’s their fault.”

    I’m starting to wonder if he’s finally reached the point where he sees the only way of saving his legacy is to be impeached, and he’s going out of his way to goad the GOP into impeaching him.

    BTW, the War Powers Act is quite clear: the burden is on the president to report to Congress; they don’t have to ask for the report. President Obama acts as if he’s never even heard of the War Powers Act.

    This guy needs to have a talk with President Obama.

  19. anjin-san says:

    @Jack:

    I call em’ like I see em’.

    And apparently all you see is cupcakes. Pretty revealing.

  20. michael reynolds says:

    Interesting paper from an American officer involved in training various Arab armies. It’s on a neo-con site, but interesting all the same. The paper’s from 1999 so, pre Iraq 2, and his basic idea is that the cultural gap between Americans and Arabs are so wide that our training has little impact on them. See: Iraqi Army, 15 years later.

  21. HarvardLaw92 says:

    @Jenos Idanian #13:

    BTW, the War Powers Act is quite clear:

    BTW, the War Powers Resolution (not Act) is arguably quite unconstitutional. Congress has the enumerated power to declare war, but the Constitution does not, anywhere, limit the use of military forces & assets solely to declared wars.. It does install the president as the commander in chief of the armed forces, and as such, the enumerated power to declare war granted to Congress is viewed as a narrowly constructed exception to presidential power.

    In other words, the president is the commander in chief of the military, but he may not unilaterally declare war on another country. That is the extent of the exception – the president may not declare wars. Nothing further.

    The WPR unconstitutionally seeks to give Congress legislative veto over an enumerated executive power (command of the military), which IMO violates separation of powers. Such legislative vetoes have been declared by SCOTUS, ruling in Chadha, to be unconstitutional. Congress has a variety of enumerated powers which it may properly invoke in order to limit the war-making power of the presidency (the power of the purse, among them), but it may not attempt to force another branch to seek legislative permission before invoking its enumerated powers.

    The courts have already ruled that members of Congress do not have standing to challenge presidential actions related to the deployment of military forces.

    So, as usual, you are beating the wrong drum.

  22. Just "nutha... says:

    @Stonetools:

    The Republicans are not only not going to rein in Obama on the ISIS war, they are going to insist he go even further.

    Or even better Rand and Doug can rant about Obama going against the law of the land while the chickenhawk wing (pun intended) rant about him not doing enough.

    Winning all the way around!

  23. Just "nutha... says:

    @Jack: And yet, you sound a lot like Jenos with the “cupcake” barb. Hmmmmm…

  24. Just "nutha... says:

    @Jenos Idanian #13:

    And this time is no different. Suck it up, ‘buttercup.”

    And here’s the use a different barb head fake…

    …nope, not buyin it!

  25. Jenos Idanian #13 says:

    @HarvardLaw92: BTW, the War Powers Resolution (not Act) is arguably quite unconstitutional.

    That would be an interesting point if Obama was saying it. Instead, Obama is simply ignoring its existence. With Libya, he said that it didn’t apply just because he said it didn’t.

    Obama’s tactic here is to just ignore the law and dare Congress to challenge him. It’s somewhat reminiscent of Andrew Jackson’s dismissal of the Supreme Court (“John Marshall has made his decision, now let him enforce it.”) and Josef Stalin’s dismissal of the Catholic Church ( “The pope! How many divisions has he got?”)

    You’re making a halfway decent argument for challenging the War Powers Act. Can you make one for what Obama’s actually doing, which is ignoring it?

  26. Jenos Idanian #13 says:

    Just “nutha… (The “Reply” suddenly isn’t working for me):

    Get real, dumbass. Why would I EVER get into a discussion about President Obama and the War Powers Act WITHOUT first bringing up Senator Obama’s statements on said Act, where he is on video denouncing exactly what he’s doing now?

    For the record: I haven’t said ANYTHING on this thread except under this screen name, and the only reason you and wr are saying otherwise is because you have nothing to say in defense of Obama’s actions, because they are so plainly indefensible. Hell, even Harvard Law ’92 can’t find a way to do it, so he/she/it invents a whole line of defense for what Obama COULD do, but has cnosen not to do.

    I wonder if Senator Obama, were he still in office, would file articles of impeachment against President Obama over this.

    Nah. Senator Obama was all talk, no action. And only talking when it was safe. Besides, while it’s fun to pretend that Senator Obama and President Obama are two different people, he’s the same narcissistic, opportunistic hypocrite he always has been. His motivations for both positions are exactly the same, and entirely consistent: his own self-interest and self-advancement.

  27. Tony W says:

    @HarvardLaw92: Every basic constitutional law class I have had makes this argument – and it’s a good one. There’s typically a comparison to Lincoln suspending Habeas Corpus – but that was a different situation entirely with active revolt going on.

    I suppose Congress doesn’t want all that responsibility. It is politically expedient to pin it on the executive if when things go badly. Guess that’s why it’s a Resolution, not an Act.

  28. wr says:

    Oh, goodie. Now the fact that everyone knows Jenos uses multiple sock puppets is actually proof that we know he’s right on foreign policy and we have to change the subject. And since Jack calls people “cupcake” and Jenos calls them “buttercup,” clearly there’s no similarity between the two.

    But hey, Jenos and Jack both deny they’re the same person — how can they both be wrong?

  29. C. Clavin says:

    There is as much chance of Republicans acting on this as there is of them acting on immigration.
    Zero.
    Republicans have absolutely no interest in governing and lack the imagination and vision required to govern.
    They are simply interested in maintaining the power required to protect the income of their employers and the power required to control the reproductive rights of women.

    What I find fascinating is that ISIS is a gnat…an inevitable result of the Bush blunder and the civil war between Shia and Sunnis that set in motion…predicted years ago by VP Biden and currently stabilized by Obama’s “lack of a strategy.”

    In the meantime Obama’s deal with China is historic in scope and wide-ranging in its implication for the next, say, 50 years.
    Yet crickets from OTB on that.

  30. Sock Puppet #9 says:

    Look you guys, if I bold something or use ALL CAPS, I win. Period.

    Don’t you know anything? Dolts.

  31. Jenos Idanian #13 says:

    @wr: Oh, goodie. Now the fact that everyone knows Jenos uses multiple sock puppets is actually proof that we know he’s right on foreign policy and we have to change the subject. And since Jack calls people “cupcake” and Jenos calls them “buttercup,” clearly there’s no similarity between the two.

    OK, whoever had “too stupid to understand sarcasm” in the “just how stupid is wr” betting pool, please contact the judge and collect your prize.

    And there really isn’t anything else to say on the topic. Senator Obama spelled out what the War Powers Act means, and he was right. Now, though, President Obama seems to believe that it only means anything if he says it does. And note the defenses don’t actually address what’s happening. Some put forth a legal argument that might have some merit, but bears no resemblance to what Obama’s actually doing. Others say “so what? What you gonna do about it?”, essentially admitting that Obama’s actions are illegal.

    Principles? Yeah, I can see how they’d be foreign to the Obama defenders. He shows he has none; why should they?

  32. Just 'nutha' ig'rant cracker says:

    @Jenos Idanian #13: No, I just decided that I wanted to goad you a little. Mission Accomplished!

  33. HarvardLaw92 says:

    @Jenos Idanian #13:

    Can you make one for what Obama’s actually doing, which is ignoring it?

    Sure. He’s exercising the powers granted to him by the Constitution, ignoring a Congressional resolution that is arguably unconstitutional to begin with, and politically putting Republicans in Congress into the position of having to either act on an issue that is important to their base or be seen as waffling. The recent beheading just increases that pressure.

    If Congressional Republicans want to press the issue with respect to WPR, let them. They’ll be seen as trying to duck taking any responsibility for ISIS, or worse yet for their base, they’ll be seen as appeasers, and best of all, they stand a very good chance of losing in court (and of losing their self-granted legislative veto) if they actually challenge the president on this issue via litigation. They want none of these to happen, which is why they will continue to do exactly what they are doing – grumbling about WPR technicalities while taking no definitive action at all to curtail the president’s actions. Truthfully, they want us doing what we’re doing in Iraq – they just don’t want to be seen as responsible for it. They do, however, want to be able to position themselves to share any credit for positive outcomes it produces.

    That duality – ducking political fallout while being positioned to share political benefit – is precisely why Congress passed WPR to begin with.

    The fun part is that what Obama is doing is nothing new. Ford defied the WPR, as did Reagan, Bush, and Clinton. They all got away with it – because when the cards are laid on the table, Congress doesn’t have the power to directly enforce the resolution, and they’re well aware of that fact. It remains useful to them only if they don’t actually try to enforce it, which is why they never actually will.

  34. gVOR08 says:

    @michael reynolds: I suspect that all that matters is the loyalty of the Saudi security forces. It is the Middle East, loyalty can be bought, well, leased.

  35. gVOR08 says:

    @Jenos Idanian #13: You want Obama to fight ISIS and you want him to get approval from congress. Make up your mind.

  36. Grewgills says:

    The WPR has no bearing on Obama’s justification, so going on about the three month deadline is just smoke and mirrors. He has based his ability to pursue ISIL on the AUMF. If Congress wanted to do something about this they could either amend or repeal the AUMF. They could have done this in the House already. They could do it when the Senate opens for business in January and there would not be enough Democratic opposition to filibuster. They have not and they will not, so they are tacitly agreeing that his use of force is justified and with their consent.

  37. Jenos Idanian #13 says:

    @HarvardLaw92: The fun part is that what Obama is doing is nothing new. Ford defied the WPR, as did Reagan, Bush, and Clinton. They all got away with it – because when the cards are laid on the table, Congress doesn’t have the power to directly enforce the resolution, and they’re well aware of that fact.

    Bullcrap. Every president has acted “consistent with” the War Powers Act. Clinton probably technically broke it, but every single president at least acknowledged that it existed. None of them accepted it, but they didn’t just pretend it didn’t exist. That’s what Obama is doing.

  38. Jenos Idanian #13 says:

    @gVOR08: You want Obama to fight ISIS and you want him to get approval from congress. Make up your mind.

    In what universe are those mutually exclusive?

  39. HarvardLaw92 says:

    @Jenos Idanian #13:

    No. Section 3 of the WPR mandates that presidents consult with Congress “in every possible instance” before introducing US troops into situations of hostilities or imminent hostilities, and to continue to consult with Congress as long as said troops remain deployed. No president since Nixon has consulted with Congress (meaning to discuss it beforehand and to get their agreement) prior to introducing troops into areas of hostility.

    Ford did not consult with Congress prior to sending US troops to recapture the SS Mayaguez.

    Carter did not consult with Congress prior to sending troops into Iran in an attempt to get the hostages back.

    Reagan did not consult with Congress prior to sending US troops (“military advisers) to El Salvador. More importantly, Reagan did not invoke reporting under section 4(a)(2).

    Reagan never filed reporting under section 4(a)(1) with regard to Lebanon.

    Likewise Grenada, Libya 1986, and Persian Gulf 1987.

    Bush did not consult with Congress with regard to Panama, nor did he ever invoke section 4(a)(1) reporting / timelines.

    More to the point, “consistent with” does not mean what you think that it means. It means “I am doing this, but I have no legal obligation to do this. It’s a courtesy, nothing more …”. You are confusing it with “pursuant to”.

    Bottom line – every president since Ford has violated some section of the WPR. All of them have gotten away with it, and presidents in the future will continue to do so, for the simple reason that I cited above – Congress has no power to directly enforce the resolution. The president has no legal / constitutional obligation to obtain congressional permission before introducing US forces into hostilities. He / she can’t declare a war, but that’s largely a moot point.

  40. Jenos Idanian #13 says:

    @HarvardLaw92: One would think that a proud Harvard Law grad would understand such concepts as “weasel words.” In this case, it’s “possible.” For each example you cited, the president could simply say that it wasn’t “possible” to consult with Congress because the circumstances were too dire and the time constraints too tight.

    More to the point, “consistent with” does not mean what you think that it means. It means “I am doing this, but I have no legal obligation to do this. It’s a courtesy, nothing more …”. You are confusing it with “pursuant to”.

    I’m sorry if my shorthand confused you. Every president up to Obama has always claimed to act “consistent with” the War Powers Act, because they are saying that they do not consider themselves constrained by the law. By saying that, they avoided the precedent of acting “pursuant to” the law, which could be used as an acceptance of the law’s restraints. Each president kicked the can down the street to the next one, reserving the right of a future president to challenge the law, should he or she believe it necessary.

    Until Obama. Instead of kicking the can again, or taking up the challenge, Obama has simply decided that the law means what he wants it to mean, and to hell with what anyone else might think. Again, he’s simply doing whatever the hell he feels like, certainly not like a Constitutional scholar.

    Again, I wonder: why the hell am I having to explain this to someone who boasts of being a Harvard Law School alumni? Are you lying about your credentials, or are you indicative of just how little Harvard deserves its reputation?

  41. HarvardLaw92 says:

    @Jenos Idanian #13:

    I’m sorry if my shorthand confused you. Every president up to Obama has always claimed to act “consistent with” the War Powers Act, because they are saying that they do not consider themselves constrained by the law. By saying that, they avoided the precedent of acting “pursuant to” the law, which could be used as an acceptance of the law’s restraints. Each president kicked the can down the street to the next one, reserving the right of a future president to challenge the law, should he or she believe it necessary.

    Thank you for reiterating my point – every president since Ford has pushed the assertion that the resolution is unconstitutional, and acted in ways that underline that assertion – by refusing to comply with its provisions in various ways. ALL of them have violated the WPR, some repeatedly, and ALL of them have gotten away with it. Obama is doing EXACTLY what presidents before him have done – refused to comply and done exactly what he wanted to do within the limits of the powers conferred on him by the Constitution.

    You continue to labor under the premise that the WPR is legitimate law. It isn’t. The courts have as much as made that clear, and Congress has acceded to that determination by doing … exactly … nothing … They grumble and kvetch, 1) because it resonates with people like you and is therefore useful politically, and 2) because it’s all that they can do.

    Congress has done next to nothing, beyond trotting off to court a few times and getting itself bodyslammed by rulings that favor the presidential interpretation of the WPR.

    You want Obama’s actions to be somehow different because you dislike Obama. They aren’t. They’re exactly the same as his predecessors, rightly so, and I’m just not interested in your games. You can leave the ad hominems at the door on your way out.

  42. Jenos Idanian #13 says:

    What part of “every prior president has avoided directly challenging the law” escapes you?

  43. HarvardLaw92 says:

    @Jenos Idanian #13:

    What part of “every prior president has directly challenged this law by refusing in various ways to obey it” escapes you?

    When you are ready to consider that, get back to me, otherwise you are (as usual) just wasting my time.

  44. Jenos Idanian #13 says:

    @HarvardLaw92: What part of “every prior president has directly challenged this law by refusing in various ways to obey it” escapes you?

    The part about “directly.” Also the bit about “in various ways.” Every president from Ford to Bush II all went along with the War Powers Act (although Clinton did come very close to flouting one key provision once), making a point of saying “I don’t necessarily accept it, but I’m not challenging it at this time.” Obama was the first to simply ignore it.

    Another odd thing: your fellow Harvard Law alumnus Barack Obama was quite a champion of the War Powers Act when he was a senator. I wonder what happened to change his mind? Or was his support of it yet another of those obvious lies that he had to say to maintain his political credibility?

  45. Grewgills says:

    @Jenos Idanian #13:
    He is ignoring the War Powers RESOLUTION because he is justifying the campaign against ISIL on the AUMF, NOT the WPR. Harvard has a point re: the WPR, but the WPR is entirely beside the main point.

  46. Jenos Idanian #13 says:

    @Grewgills: He is ignoring the War Powers RESOLUTION because he is justifying the campaign against ISIL on the AUMF, NOT the WPR.

    OK, WPR is more accurate. But is he, really? I don’t recall Obama explicitly saying such. I’ve heard a lot of people arguing that on his behalf, but Obama himself, or any of his spokespersons?

  47. HarvardLaw92 says:

    @Jenos Idanian #13:

    The WPR has several sections. Section 3 has been violated by every single president since Ford. Every single one. Without exception. Presidents have regularly ignored parts of section 4 as well.

    This whole “well, some of them paid lip service to this part, or that part, while ignoring others, and that is just completely different from what Obama is doing” crap you are trying to sell is just that – crap – and as I noted earlier it’s a waste of my time.

    One either obeys a law, or one doesn’t. There is no “well, they sort of obeyed it” sliding scale, at least not outside of partisan Jenosland.

    Obama has violated the WPR, just like every other president since Nixon. Every president that comes after him will violate it as well, and Congress will do nothing about it.

    Well, except go on Fox and get nimrods like you worked up into a lather for political benefit.

    Because that’s all that they can do.

  48. Jenos Idanian #13 says:

    @HarvardLaw92: Jesus H. Christ, for a Harvard-educated lawyer, you are astonishingly ignorant.

    You keep citing “Section 3” as being violated. Bullcrap. It has a built-in escape hatch for presidents, with the use of weasel-wording. See if you can spot the key word — to help you, I’ve even bolded it.

    SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

    “I’m sorry, it just wasn’t possible to notify Congress in time; things were just happening too fast. Plus, we were concerned about leaks; American lives were at stake.” If that sounds familiar, it’s the same excuse Obama used for why he didn’t notify Congress about the Bergdahl prisoner swap.

    But just for a moment let’s pretend that Obama had a genuine change of opinion about the validity of the War Powers Resolution, and not just a change of circumstance. Wouldn’t it be incumbent upon him to challenge it in court to get it overturned, or even ask Congress to repeal it? He had the votes in his first two years in office, after all.

    Instead, he’s just acting as if it doesn’t exist. He hasn’t said it’s invalid, he hasn’t said it’s illegitimate, he’s simply ignored it and depended upon his sycophants (that would be you and yours, by the way) to make his excuses for him.

    And you’re such a good little lapdog, aren’t you?