President Obama will deliver a public address Wednesday night about his plan to combat the Islamic State, the militant group that has violently taken over large swaths of Iraq and Syria, murdered two American journalists in videos released online and moved to set up a caliphate in the Middle East under strict Islamist law.
Obama already has indicated to policy experts that he is ready to extend airstrikes the U.S. military has been conducting against the militants in Iraq for the last month into Syria, according to The Washington Post. He does not believe he needs congressional authority to do so, an interpretation of law that will draw close scrutiny from legal experts, politicians and foreign policy analysts.
Is he right, though? Checkpoint turned to Robert M. Chesney, a professor and associate dean at the University of Texas School of Law, for some perspective on what arguments the White House might make. He has written on related issues several times on Lawfare, a blog devoted to “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.” It’s written by Chesney and fellow legal experts Jack Goldsmith and Benjamin Wittes, among others.
Here’s Chesney’s take:
There are a few arguments that the administration might advance.
First: We are told in an article in the Post that the administration may believe it already has an authorization from Congress via the Authorization for Use of Military Force (AUMF) that Congress passed in October 2002 in connection with the looming invasion of Iraq. In brief, that argument runs as follows:
(i) the 2002 AUMF remains on the books despite having seemed defunct for several years now (and despite the fact that this administration not long ago proclaimed its desire to see it repealed),
(ii) that instrument authorizes the President to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to–(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq”; and
(iii) IS is a threat to US national security with sufficient connection to Iraq so as to implicate this authority.
As you might guess, opinions vary on whether this is a plausible argument. Jack Goldsmith, in this post, makes the best case that can be made:
As I argued a few months ago:
The relatively narrow original purpose of this statute is captured in its preambular language. But what counts is the operative text of the authorization. That text gives the President the discretion to determine when the use of the U.S. Armed Forces is necessary and appropriate to defend U.S. national security against the continuing threat posed by Iraq (not the government of Iraq, not Saddam Hussein, but Iraq), and authorizes the President to use those forces in that circumstance. It is not at all hard to interpret this statute to authorize the President to use force today to defend U.S. national security from the threat posed by the ISIS-induced collapse of Iraq.
(Some (see, e.g. here and here) disagree with my interpretation.) For the 2002 authorization to work, the President would need to determine that air strikes against ISIS to protect religious minorities in Iraq would further U.S. national security interests; but that should not be hard to do. The main hurdle to relying on the 2002 authorization is that National Security Advisor Susan Rice has disclaimed its relevance and urged Congress to repeal it. (For criticism of that position, see here.)
As you’ll see, I’m among those to which Jack links above as disagreeing with this reasoning. My view interprets the 2002 AUMF with more emphasis on the intent and context of its passage a dozen years ago, which leads me to conclude that the IS threat is different enough in kind and time so as not to count.
Tellingly, I do not think there has been any claim by the administration, prior to now, that this argument works… notwithstanding 140+ airstrikes and much talk of having authority to act even without an AUMF so long as there is a threat to US personnel in Iraq or a looming humanitarian crisis. Even now, the Post article mentioning this claim is conspicuously unclear as to just who may have made it. It feels like something of a trial balloon.
Second: What about the 2001 AUMF, the one relating to al Qaeda? I think this is a non-starter given that IS is, if anything, currently a rival of AQ (though obviously it once was a different matter; IS was previously AQI).
Third: How about legislative support that is not an explicit authorization but that nonetheless might be taken as a sufficient expression of support so as to discharge any role required of Congress? More specifically, how about funding provided explicitly for strikes against IS? Famously, the Clinton Administration relied in part on such a rationale in connection with the Kosovo campaign. If and when Congress passes a supplemental appropriation linked to strikes on IS, we’ll surely see this argument again. It conflicts with the War Powers Resolution, but it’s hardly obvious that that is dispositive. Frankly, it may be the type of argument that most closely tracks the role that Congress sometimes seems to prefer: funding operations to make them possible and to allow them to take some credit if it goes well, but preserving strategic ambiguity with the voters so that if things go south there is room to distance themselves from the policy.
Fourth: What about the fact that the War Powers Resolution does not purport to require removal of forces until 60 days after hostilities commence? Some have suggested that this gives an implied green light to deploy without authorization for two months. Indeed, that is suggested in the Post article above, alongside the reference to the 2002 AUMF. But it’s a bad argument; the WPR itself explicitly rejects that interpretation of the WPR.
Fifth: Nevermind Congress. Can the President conduct air operations, plus boots on the ground for coordination and assistance to host nation forces, without any approval? Well, we know the Obama administration thinks so, since that was its position in Libya a few years ago, and seemed to be its position when it thought about striking Syria more recently, and has been its position over the past few weeks as we’ve carried out 140+ airstrikes. The argument in Libya was that Congress has no requisite role unless there is “war” in the specific sense of sustained commitments and, especially, boots on the ground in combat. No doubt that’s the same argument we’d see here. It certainly has its critics, and rightly so in my view. More interesting is the claim that there are special pockets of Article II independent authority for situations like national self-defense or self-defense of US persons or forces in the field.
Those are well established categories, in my view, and in the right fact pattern they should work. The question is how far those categories can be stretched. And then there is the novel argument the administration made recently as to humanitarian intervention, or more simply put, third-party self-defense. That does not have a long track record, to put it mildly, and is also tough to cabin conceptually.