Tuesday, July 8, 2014

Legal Constraints and Cover Regarding Middle Eastern Intervention

This article first appeared on The Epoch Times
     

     President Obama has been mulling overt military action in Iraq ever since the Islamic State (IS) (formerly the Islamic State of Iraq and al-Sham or ISIS) began taking swaths of territory with relative ease.  The president has since deployed approximately 300 military advisors, who despite their misleading moniker, are combat-ready troops.  In addition, the president has also recently decided to send 200 more troops bringing the total US troop level in Iraq to 775.  President Obama maintains the increased number is to protect the United States embassy while the previous deployment of military advisors was to collect intelligence from the ground in order to make better-informed decisions regarding future action.

     There have been several arguments for and against military engagement in Iraq from members of Congress and those in the academic community.  A pivotal aspect regarding military intervention in Iraq is legal authority or authorization against the insurgents.  Several legal scholars in the national security field have debated these legal quandaries at length over the past month, both affirming and disavowing necessary legal authority.  Here is a brief overview of relevant legal authority(s) that may justify military force within the current conflict in Iraq (and possibly Syria): 

2001 Authorization for Use of Military Force (AUMF)


     The AUMF was passed days after the attacks on September 11, 2001 and authorized the military engagement in Afghanistan.  The AUMF states: "That the President is authorized 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."  One of the major legal constraints for the administration in using the 2001 AUMF as legal cover for intervention in Iraq against IS currently, is that IS has been excommunicated by al-Qaeda.  IS is no longer "associated" (more on this below) with "nations, organizations, or persons he [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," as they are now a completely separate entity from al-Qaeda.  However, Congress has given the president their blessing by saying he has the legal authority under the 2001 AUMF and other legal avenues to pursue action against IS. 

2002 Authorization for Use of Military Force  


     The 2002 AUMF or the Authorization for Use of Military Force Against Iraq Resolution of 2002 authorized the Iraq War.  Congress limited their authorization as such: "The President is authorized 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."  Some legal scholars have wrestled with the applicability of this authorization whether it can be used in the current situation or if it was limited to the threat of the Saddam regime.  Jack Goldsmith at "Lawfare Blog" believes the 2002 authorization is enough legal cover for today’s applicability.  "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," wrote Goldsmith.  Conversely, authors at the national security blog "Just Security" disagree and believe, "taking such action—against a different enemy, a different threat, and a different form of armed conflict—would surely violate the plain language of the 2002 AUMF."

War Powers Resolution

 

      The War Powers Resolution, passed during the Nixon Administration over President Nixon's veto and deemed a check against unilateral presidential war authority, limits "Presidential executive power as Commander-in-Chief" to engage military forces into hostilities only under; "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."  The president is also limited to a sixty-day deployment period of armed forces under the resolution, should he commit forces, unless Congress has declared war, extended the sixty-day period, or Congress cannot meet to renew the sixty-day period due to an armed attack against the United States in which the armed conflict shall be extended by thirty days.  Under the Obama administration, the intervention in Libya in 2011 where the US was involved in a "limited engagement" fell under the umbrella of the War Powers Resolution.  The president may use this "limited engagement" argument in Iraq as well.

 

Executive Branch Legal Analysis


     Lastly, the president’s Executive Branch legal representatives have asserted that the president has constitutional Article II authority, absent a Congressional authorization, to carry out strikes against those who pose an imminent threat against the United States and its interests.  Two legal representatives of the administration had put forth this assessment during a Senate hearing in May regarding the future of the 2001 AUMF.  In a white paper leaked to NBC News by the Justice Department in 2013 regarding the legal cover to kill American citizens abroad who take up arms against the United States, the administration asserted, "The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law."  Additionally, the Executive Branch has broadened the 2001 AUMF to include the language "associate forces," which allows the administration to include and target groups such as Al-Qaeda affiliate al-Qaeda in the Arabian Peninsula (AQAP), which originated in 2009 – not around the time of the 9/11 attacks – and groups such as al-Shabaab* in Somalia that had nothing to do with 9/11.


     The imminent threat argument is probably the easiest and most legally ambiguous authority for intervening in Iraq militarily absent a declaration or authorization from Congress and considering the weak cover from previous, but still active, authorizations.  The next question is what constitutes an imminent threat?  President Obama’s legal representatives stated at the Senate hearing in May that an imminent threat is simply one who is planning an attack against the United States.  Imminence can be (and by many accounts) is a subjective term.  While it appears as if IS is bogged down in Iraq and Syria currently focused on establishing a caliphate, they have expressed intent to attack the United States in the future.  According to Thomas Hegghammer, director of terrorism research at the Norwegian Defense Research Establishment, "It was probably no coincidence that two days before the caliphate declaration, ISIS launched a Twitter hashtag campaign titled '#CalamityWillBefallUS' that threatened the United States with terrorist attacks in the event of drone strikes."

     In addition to the Twitter campaign by then ISIS, foreign fighters, western governments assert, pose a threat to their home nations upon their return as they have become battle hardened and more ideological.  The FBI estimates over 70 foreign fighters in the Iraq/Syria conflict are from the United States.  A woman from Colorado was recently apprehended by law enforcement officials while attempting to board a flight to Germany to join jihadists.  Many of the foreign fighters have western passports making their passage into other western countries easier, according to some government officials.  Such a threat, combined with the future intent of IS to strike the United States may serve as a subjective notion of imminence, thus permitting military action to prevent and mitigate the threat. 

Conflicting evidence reported by TIME Magazine suggests, however, that foreign fighters do not want to return to their home countries as they have found a purpose in the newly established caliphate.  Furthermore, a recent study discovered that only one in nine 945 of a western foreign fighters sample returned to home countries and waged attacks and one-in-nine who "become terrorists are likely to be more effective, competent, and influential than 'home-grown' extremists who haven't had the same opportunities to acquire military training, bomb-making skills, and fighting experience."  This suggests that focusing on home-grown terrorism and domestic terror mitigation upon foreign fighters return may be a better objective for the resources of western governments.


     Military intervention on one scale or another in Iraq appears inevitable.  If history is any indication, many scholars have drawn parallels to Kennedy's deployment of military advisors to Vietnam and subsequent military conflict to the present day - denoting an escalation in the US-Iraq military campaign.  President Obama wants to maintain embassy security, which may provide further reason to deploy more troops – more than the additional 200 he deployed for this very reason.  Congress has also given the president their blessing, which by some analysis, is a complete abdication of constitutional authority delegated to Congress: the power to declare war.  The president may be pressured into military intervention by hawks on the right and those professing a safe haven in Iraq will foster another 9/11.  Absent any concrete steps taken by IS toward the US, it is hard to rationalize, legally, military intervention unless under the broad guise of potential “imminence,” though even that may be shady.  However, it is impossible to know classified information and intelligence gathered on the ground by officials and military advisors.



* UPDATE: 9/3/2014 According to some legal scholars (whose articles can be found here and here), the Obama administration has never publicly acknowledged that al-Shabaab is an "associate force" of al-Qaeda and the legal basis for military action against the group either lies in Article II authority or the notion that certain members of al-Shabaab are dual members of al-Qaeda and al-Shabaab.  

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