United States military action against the so-called Islamic State has gone on for nearly three months without the Obama administration making a thorough, public legal argument for war. That relative silence, legal experts say, is a testament to the seemingly permanent war footing that Washington has been on since the terrorist attacks of Sept. 11, 2001.
Congress, which gave the George W. Bush administration broad authority to wage war against al-Qaeda in 2001 and Saddam Hussein in 2002 — through Authorizations for Use of Military Force (AUMF) — has shown signs of finding its voice when it comes to fighting the Islamic State, also referred to as ISIS and ISIL. Some members have put forth measures that would limit the scope of the U.S. campaign against the group, which controls stretches of Iraq and Syria. And yet despite the clamor for a debate on the subject, lawmakers may not be in a rush to revisit the politically sensitive issue in the lame-duck session.
The United States began airstrikes on Islamic State fighters and assets in Iraq on Aug. 8, and in Syria on Sept. 22. Obama had Baghdad’s permission, and its pleas, to launch the strikes, negating the need for a U.N. Security Council resolution to authorize the military intervention. The same can’t be said for Syria, where President Bashar al-Assad has called the airstrikes a violation of the country’s sovereignty, even though the U.S.-led offensive against Islamic State fighters inadvertently helps his regime.
At home, the administration’s legal pronouncements to date on the issue mainly consist of a series of short letters Obama has sent to Congress notifying it of the hostilities. In one such letter, dated Aug. 8, the president cites his constitutional authority to protect the nation as commander in chief, pledging that the military operations in Iraq “will be limited in their scope and duration.” A September letter adds the president’s statutory authority as a justification for the airstrikes, presumably a reference the 2001 or 2002 AUMF. (Unlike the previous missive, the Sept. 23 letter stated that it “is not possible to know the duration of these deployments and operations.”)
The addition of statutory authority to the administration’s legal argument is likely an effort to comply with the War Powers Resolution (WPR), which requires the president to cease any “hostilities” he or she has authorized after 60 days unless Congress has authorized force. So says Jack Goldsmith, a Harvard law professor and Justice Department official in the George W. Bush administration.
Goldsmith writes on the popular Lawfare blog that “compliance with the WPR, especially for airstrikes in Syria, depends on the administration’s tenuous interpretation of the 2001 AUMF.”
Obama’s terse epistles to Congress amounted to a courtesy call; they were not a robust debate on the use of force that legal experts and, to a certain extent, the American public, have called for. Following the Nov. 4 election, though, the president said he would seek authorization in the Republican-controlled Congress for the military campaign against the Islamic State, opening the door on a debate the administration — and lawmakers — have thus far been able to largely avoid.
The Expansive Wartime President
As a presidential candidate and in his early months in office in 2009, Obama signaled he would respect checks and balances between branches of government when it came to making war.
“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,” candidate Obama told the Boston Globe in December 2007.
Congress had a largely deferential relationship with the George W. Bush administration when it came to using military force. Officials in the early years of the Bush administration made a concerted effort to expand presidential power, according to an exhaustively researched book by journalist Jane Mayer. Lawyers like David Addington, Vice President Dick Cheney’s counsel, and John Yoo, formerly a top official at the Justice Department, subscribed to a “unitary executive” theory that holds there are virtually no checks on the president’s ability to protect the homeland in wartime.
Once in office, Obama, like his predecessor, affirmed that the United States was at war with al-Qaeda and its affiliates, though he hinted at a break from the past.
“We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability,” he said in a May 2009 speech, adding that “the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable.”
Despite that high-flown rhetoric, Obama has claimed considerable executive power to fight terrorism. He did not seek fresh congressional authorization for using force in Libya in 2011 and, as of now, has not sought it for Syria and Iraq in 2014. Obama oversaw a significant expansion of drone strikes in Pakistan, Yemen and Somalia in his first few years in office, though those numbers have dropped steadily since 2010. As part of that campaign, the administration authorized the use of drones to kill American citizens abroad without a trial, citing a legal justification that remains highly controversial.
The president also publicly said that while he will seek Congress’s cooperation in the fight against the Islamic State, he does not need its formal blessing to take action. “I have the authority to address the threat from ISIL, but I believe we are strongest as a nation when the president and Congress work together,” he said in a Sept. 10 speech.
Legal scholars point out that the weakening of legislative and judicial checks on the president’s ability to wage war has been going on for decades. “I think our constitutional system was upended when [President Harry] Truman went to war on his own in Korea without ever coming to Congress,” said Louis Fisher, a scholar in residence at the Constitution Project who worked for four decades as an expert on the separation of powers at the Library of Congress.
Truman did not ask for congressional approval before announcing, in June 1950, that he was sending U.S. troops to Korea. Truman argued that legal justification for that use of force came from a U.N. Security Council resolution authorizing armed assistance to South Korea in response to an incursion from the North.
The Truman administration marked a turning point in “the atrophy of congressional and judicial power when it comes to national security,” said Michael Glennon, a professor of international law at the Fletcher School of Law and Diplomacy. It was then that the “establishment of the national security apparatus” bred “habitual deference” from the executive, legislative and judicial branches to military intelligence and law enforcement agencies, he added.
Administration Turning to AUMF
While instances of presidents pushing the limits of executive martial power stretch back decades, Obama’s use of force against the Islamic State could set its own precedent.
The administration’s invocation of the 2001 AUMF as justification to strike the group was “clearly stretching the limits of that authorization in a manner which likely will have precedent-setting consequences, so that a future president may similarly hold the view that they can stretch the 2001 AUMF as well,” said Ken Gude, a senior fellow focusing on national security at the Center for American Progress, a liberal think tank.
The briefly worded, open-ended 2001 AUMF authorized the president “to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 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.”
There were no geographical or time constraints attached to the AUMF, which critics say is outdated and was never intended to attack groups with little or no connection to al-Qaeda.
After the midterm elections that handed both the House and Senate to Republicans, though, Obama announced that he would seek fresh congressional authorization for the Islamic State offensive. “The idea is to right-size and update whatever authorization Congress provides to suit the current fight rather than previous fights,” Obama said, reversing his earlier position of relying on the AUMFs for the airstrikes. “The world needs to know we are united behind this effort and that the men and women of our military deserve our clear and unified support.”
Congress in Limbo
Congress is far from united on the issue, which most lawmakers preferred to avoid in the run-up to the elections. Several lawmakers, however, did seem eager to take up the issue when Congress returns for a lame-duck session between the November elections and a new legislative session in January.
Sen. Tim Kaine (D-Va.) has said that neither the 2001 nor the 2002 war authorizations from Congress applies to the current campaign against the Islamic State. On Sept. 17, he introduced legislation that would narrowly authorize U.S. force against the Islamic State. The measure would forbid ground troops and repeal the 2002 AUMF, which Kaine says is obsolete. Sen. Bill Nelson (D-Fla.) has put forth another measure that would authorize force for three years (whereas Kaine’s does so for just one year).
Fisher of the Constitution Project is heartened that Congress is apparently considering the issue more closely than it has in other instances since 9/11. “That’s so different from Iraq in 2002, where you just give a blank check. And this is no blank check this time. This is monitoring by Congress,” he said. “I think Congress is sending a signal, bipartisan, that we are not going to give you a chunk of authority to do as you like. It’s going to be short term, and you’re going to have to come back to us on a regular basis.”
Yet members may not necessarily want to go on the record, one way or another. It is far easier to criticize the administration’s strategy in Iraq and Syria than to take a concrete stance on it. (That dynamic was laid bare when Congress blasted Syrian President al-Assad for using chemical weapons but then shied away from voting on retaliatory airstrikes.)
The vote to invade Iraq still haunts some lawmakers, more than a decade later. Debates in the House and Senate on Sept. 17 and Sept. 18, respectively — before each chamber passed a bill to train and arm Syrian rebels to fight the Islamic State — reopened old wounds left by the 2002 AUMF.
“The last time people took a political vote in this House, it was on the Iraq War,” Rep. Loretta Sanchez (D-Calif.) said on the House floor, “and many of my colleagues say it was the worst vote they [ever] took.”
Though some lawmakers broached the AUMF, the debates lacked a key witness: a representative of the Obama administration. And for Glennon, Congress will be faced with a fait accompli should members debate the war in the lame duck. “The war will already be in operation, American lives and resources will already be committed, and it will be very difficult, suddenly, to throw this massive engine in reverse,” he said.
Sen. Rand Paul (R-Ky.) offered a similar assessment on the Senate floor recently. George W. Bush came to Congress for an authorization of force, Paul noted. “Agree or disagree, we did the right thing” in offering a legislative mandate for war, he said.
“When American interests are at stake, then it is incumbent upon those advocating for military action to convince Congress and the American people of that threat,” he said in a Sept. 18 foreign policy address, arguing that Syria is not a direct threat to American interests and therefore war against the Islamic State is not justified. “Too often, the debate begins and ends with an assertion that our national interest is at stake without any evidence of that assertion. The burden of proof lies with those who wish to engage in war, and they must convince the people and their representatives in Congress.”
About the Author
Sean Lyngaas (@snlyngaas) is a contributing writer for The Washington Diplomat.