Yesterday, the White House announced that President Obama had authorized the transfer of 275 American soldiers to Iraq in response to the advances made on the battlefield by ISIS/ISIL and its Sunni supporters and the threat that it could pose to Baghdad itself. Ostensibly, these forces are meant to beef up security at the vast American Embassy in Baghdad’s Green Zone, but there seems to be at least some implication that they would also be coordinating with the Iraqi military in its defenses against the militants that have scored such stunning successes recently. Additionally, there have been reports that the Administration has been considering air strikes against ISIS/ISIL targets in an effort to aid the Iraqi military by slowing the militant’s advances. Leaving aside the question of whether or not such air strikes would even accomplish anything militarily outside of a short-term solution that doesn’t address Iraq’s political problems, National Journal’s James Oliphant notes that questions are being raised about the President’s legal authority to launch such attacks without obtaining Congressional authority:
As the White House grapples with military options for intervening in Iraq to protect Baghdad from Sunni terrorists, it’s also examining how an air strike can be justified under U.S. law.
It’s not a question without significance, especially for an administration that likes to say it holds the rule of law above all else (even as it adopts elastic interpretations to suit its ends).
Indeed, despite the U.S. military operating freely in Iraq for eight years during its occupation, a potential strike against forces of the Islamic State of Iraq and Syria and its allies presents a tougher call than it appears.
For one thing, the administration has in no uncertain terms repeatedly declared the conflict in Iraq to be over—and in 2011, the United States effectively pulled out of the country after an agreement to leave a more robust U.S. presence couldn’t be reached with the Iraqi government. That means the White House may no longer be able to seek legal cover by invoking the 2002 law passed by Congress that authorized the Iraq invasion.
“It’s a bad argument,” said Bobby Chesney, an expert on national security law at the University of Texas. “Obviously, the context was for action against the government of Iraq.”
Chesney conceded that the law was used for years afterward to justify continued U.S. operations in the country after Saddam Hussein’s regime fell, but, he said, “We’ve been out for years. To go in there and attack ISIS—it’s really a fresh fight.”
Moreover, the administration has come out in favor of repealing the Iraq Authorization of Military Force—and Obama reiterated last week that he hasn’t changed his mind. That makes asserting it now, at best, inconvenient and at worst, highly hypocritical.
The White House could instead invoke the broader 2001 AUMF that authorized U.S. action against al-Qaida in the wake of the 9/11 attacks. The main problem with that? Al-Qaida leader Ayman al-Zawahiri has denounced ISIS for its conduct in Syria, where it has clashed with an al-Qaida backed group.
In addition, Chesney noted, the 9/11 AUMF was intended to warrant preemptive action against threats to the United States—and there has been little evidence that ISIS has America on its mind. The best thing for the administration’s legal position, he joked, is if al-Zawahiri issues a press release praising ISIS and hinting at reconciliation.
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So far, the White House is checking the boxes. Monday evening, as called for by the War Powers Act, it notified Congress of the deployment of almost 300 troops to help protect U.S. personnel in Iraq. But it seems unlikely Obama will seek any sort of formal approval from lawmakers before engaging ISIS—even though, at present, the administration appears to be pursuing diplomatic solutions to the crisis.
“When he spoke on the South Lawn last week, the president made clear we will consult closely with Congress on Iraq as we make determinations about appropriate action,” said Caitlin Hayden, a spokeswoman for the National Security Council. “He has not made a decision to undertake military action at this stage, so I’m not going to get ahead of the process and discuss what legal authorities might go along with any hypothetical military action.”
Buzzfeed’s Kate Nocerra notes that several Senators are already starting to raise te issue of the Administration’s legal authority to act:
WASHINGTON — Senate critics of President Barrack Obama’s war on terror efforts are warning the White House must come to Congress for authority if he wants to launch significant military action in Iraq.
Democrats and Republicans alike have raised questions about the authority of the Obama administration to wage war against terrorist groups, the continued territorial gains by ISIS (the Islamic State in Iraq and Syria) and deteriorating situation in Iraq have given the debate new urgency on Capitol Hill. The administration announced Monday they would dispatch up to 275 U.S. troops to protect the U.S. Embassy in Iraq.
“A new war has started and if people want to go be involved in a new war, the job of Congress is to vote on it,” Republican Sen. Rand Paul said Tuesday. “I don’t think you can have a Congress of 10 years ago make a decision for the people here 10 years later.”
“I think the president has essentially admitted the Iraq AUMF has functionally expired,” said Democratic Sen. Chris Murphy, who along with Paul is part of a bipartisan group of lawmakers who have pushed to reign in the administration’s authority under the 2001 Authorized Use of Military Force resolution. “I think we have over a dozen AUMFs on the books and we need a comprehensive look at which are functional and which are obsolete. The Iraq AUMF is functionally obsolete.”
“If he’s looking for a longer-term military engagement I don’t think he can do that under the Iraq AUMF … he’s got to come back to Congress,” Murphy added.
In many ways, this entire discussion is remnisicent of one that was being had in Washington nearly one year ago about Syria. Back then, the Administration was beginning to make noises that the President was considering the use of military force against the Assad regime over its use of chemical weapons against civilians and rebels in that country’s still ongoing civil war. Polling at the time indicated both that the American public was opposed to the idea of military strikes and that it believed that the President should seek Congressional authority before he took any action. At the time, I argued that Congress most assuredly needed to weigh in on the issue of attacking Syria, but given the President’s previous actions in Libya and elsewhere I doubted that he would actually take that step. However, in response no doubt to both public opinion and the outcry from Congress itself, the President announced in August that he would ask Congress for authority to strike Syria. As the month wore on, though, it became clear that the proposal lacked sufficient votes in both the House and the Senate and, in the end, no votes occurred thanks to a deal brokered with Russia and the Syrians that resulted in Syria agreeing to surrender its chemical weapons stockpile.
The arguments in favor of the President deferring to Congress with regard to a possible attack on Iraq today are the same as the ones that were made in favor of deferring to Congress on a possible attack on Syria a year ago. Now, as then, the possibility is being floated that the President will unleash military strikes against targets in a foreign country based on events that, at the very least, do not constitute a direct attack against the United States or its interests. Bashar Assad’s use of chemical weapons was, after all, just another event in a civil war that was already long and brutal a year ago, and it ended up killing a small number of people compared to the over 100,000 who have been killed in that war according to most international estimates. Similarly, the military success of ISIS/ISIL has achieved is not a direct attack on the United States and, to the extent that American lives are in danger, there is still plenty of times to evacuate American personnel safely should the need arise. As noted above, the AUMF that authorized the Iraq War in 2002 could not be used to justify action against a totally different adversary more than a decade later without straining the bounds of credulity. The same applies to the AUMF that authorized action against al Qaeda that was passed in 2001. While that particular resolution has been used to justify force far beyond Afghanistan, the fact that any connection between ISIS/ISIL and al Qaeda is theoretical at best at this point means that you simply could not make the argument credibly.
Obviously, the President could decide to act on his own as he did in Libya, but there are several reasons why I think this would be a bad move on his part .First of all, while we have yet to see any polling on public attitudes toward potential military action in Iraq, there’s more than enough polling evidence out there to indicate that at the very least the public would be skeptical about such an attack, and probably overwhelmingly against the idea. Taking such action on his own in the face of strong public opposition would be a tremendous political risk, so it would be in the President’s own interests to try to get Congress on board with the idea of an attack if that’s the course of action he chose to take. In hindsight, this is probably the reason why he decided to seek Congressional approval for an attack on Syria last year. He would do well to listen to those instincts again, because a unilateral attack on Iraq given our recent history with that country would most likely be viewed very negatively by the public, especially in light of the President’s already low job approval numbers.
The political argument for going to Congress in this case is made stronger by President Obama’s own past statements on the issue of Presidential authority to go to war. For example, when he was still just Senator Obama and starting out on what would become a successful run for President, Barack Obama 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.
Elsewhere during that campaign, Obama also said that the American people have a right to know the basis for military action before it occurs, and Vice President Biden once even suggested that taking military action without Congressional approval could be grounds for impeachment. Given all of this, the President would at the very least by hypocritical if he didn’t seek Congressional approval should he decide to weigh in against ISIS/ISIL in Iraq. For those reasons, and most importantly because the Constitution requires it, though, Congress must insist that he seek such approval.
