Of course, it helps that he doesn’t want anything.
The use of American force in Iraq has met with little political opposition – and the brutal murder by the Islamic State of journalist James Foley will hardly change that. An important article by Julie Hirschfeld Davis points out that despite recent stirrings in the House, neither the president nor congressional leaders seem interested in reviving the war powers debate that flared into public view when Obama said he would seek congressional authorization for military force in Syria. Nonetheless, the use of airstrikes and even limited ground forces certainly seems to constitute “the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” subject to the terms of the 1973 War Powers Resolution (WPR). Obama, in a letter to Congress dated Aug. 17, said he was notifying legislators about his decisions, “consistent with” the WPR but not “pursuant to” it (since that would concede it governs his actions here. Presidents have rarely conceded even the WPR’s constitutionality.)
One question, as raised recently by The Hill, is when the WPR “clock” starts ticking towards the required removal of deployed troops – 90 days after the first announcement on June 16 brings us to mid-September.
But this assumes the president had power to take action in the first place. In the WPR, presidents are given authority to use force when there is (1) a declaration of war; (2) a specific statutory authorization; or (3) “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Options (1) and (2) are self-explanatory; but they do not – yet – apply to the re-entry to Iraq. So one question facing Obama is whether (3) would cover sufficient ground.
As I wrote about Syria, presidential uses of force without WPR authorization have tended to fall into one or both of two categories: in cases of self-defense (even if imaginatively defined), or in cases with wide multilateral support. The first category contains cases such as the (failed) rescue attempt of the American hostages in Iran in 1980 or the 1998 missile strikes after the African embassy bombings, and also instances where presidents were more generous in their interpretation of “attack upon the United States.” (For instance, the 1989 invasion of Panama was explained by President Bush as a response to General Manuel Noriega’s “reckless threats and attacks upon Americans in Panama [which] created an imminent danger to the 35,000 American citizens” there. The 1983 invasion of Grenada was publicly justified by President Reagan along similar lines.)
The second category often requires a cause of action endorsed by the international community, normally with a humanitarian component. Even in Grenada, Reagan was careful to stress that the U.S. had been invited to respond, that it was doing so in concert with other nations in the region, and that “this collective action has been forced on us by events that have no precedent in the eastern Caribbean and no place in any civilized society.” In Somalia (1992), Kosovo (1999), and Libya (2011), one could cite both humanitarian concerns and treaty obligations (e.g. with the United Nations, NATO, or both). While the WPR specifically rules out inferring authority to use force from treaties, they do muddy the legal waters.
Obama’s most recent letter says the current mission focuses on the Mosul Dam, and aims “to support the Iraqi forces in their efforts to retake and establish control of this critical infrastructure site.” Failure “could threaten the lives of large numbers of civilians, endanger U.S. personnel and facilities, including the U.S. Embassy in Baghdad, and prevent the Iraqi government from providing critical services to the Iraqi populace.” He goes on to say that “I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive. These actions are being undertaken in coordination with the Iraqi government.”
The broad claim of constitutional authority seems to be meant as a rationale for not invoking the WPR at all, but it is largely of the kitchen-sink variety (even leaving aside my pet peeve that presidents should not call themselves “Commander in Chief” generically — the Constitution reminds us they are “commander in chief of the Army and Navy of the United States” — what does being Chief Executive have to do with it?) The president instead seems to be aiming for a combination of the two categories — self-defense, in a very indirect way (Americans in Baghdad could be in danger), and humanitarian multilateralism. Still, this doesn’t quite rise to a “national emergency” (for the US, at least), and Obama doesn’t try to hard to make that case. And somehow, for all the legislative blustering over checks and balances in the lawsuit debate, it doesn’t seem he’ll be required to.