Friday, September 12, 2014

Even if the President has the Authority to Wage War, Should He go to Congress: An Examination of Legal Authority

This article first appeared on The Epoch Times     


     President Obama has firmly asserted that he has "the authority to address the threat from ISIL," using his preferred acronym for the Islamic State in a speech on Wednesday.  The president famously went to Congress a year ago asking for authorization to issue air strikes against Syria's government for their use of chemical weapons against their own citizens and in that instance, the president also acknowledged that he had the authority under the Constitution to strike unilaterally.  President Obama criticized the Bush administration for their usurpation of executive authority especially as it pertained to war, yet, President Obama has perpetuated and exacerbated much of these sentiments in his presidency.  So what is the legal authority the Obama administration is relying on to strike the Islamic State unilaterally and is it legal?  Even if he does have the authority, should he go to Congress to have a debate on this desperately important issue as the Constitution demands?

     Prior to the president's speech on Wednesday, many believed he was exercising his authority to strike the Islamic State in Iraq under the commander-in-chief powers delegated to him under the Constitution's Article II. Article II allows him to protect Americans and their interests from imminent threats.  After his speech, the administration has stated that they are relying on the 2001 Authorization for Use of Military Force (AUMF) to ramp-up military action from a defensive to an offensive campaign in Iraq and Syria against the Islamic State. The defensive strategy, according to several releases by the Department of Defense, was simply to "protect U.S. personnel and facilities, support humanitarian efforts, and support Iraqi forces that are acting in furtherance of these objectives."  Under the new offensive campaign, the president has authorized the military to target specific members of the Islamic State, which they were not allowed to do previously even if they were aware of their locations.   In the words of an administration official as provided by former Obama administration legal advisor Marty Lederman
"Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy, the President may rely on the 2001 AUMF as statutory authority for the use of force against ISIL, notwithstanding the recent public split between AQ’s senior leadership and ISIL," (emphasis not mine.)

     As I have emphasized several times in the past (here, here, here, and here), strikes against the Islamic State should not be covered under the 2001 AUMF and many legal scholars were very surprised to discover that the administration was relying on this 13-year old statutory framework for their new campaign.  Briefly, the 2001 AUMF allows 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."  Since the Islamic State publicly split with al-Qeada (the organization that carried out the attacks) they should fall outside the law's legal framework.  

     However, as American University law professor Steve Vladeck has argued, the administration may not consider the Islamic State an "associate force" of al-Qaeda, a previously accepted legal argument put forth by the administration, which allows it to target other terrorist groups with associations and affiliations to them. Vladeck states that the Obama administration may believe that the Islamic State is al-Qaeda.  "On my understanding of what little we’ve heard from the Administration on this front, the claim is not that ISIL is an 'associated force' of al Qaeda; the claim is that ISIL is al Qaeda–that is, that ISIL has effectively inherited al Qaeda’s mission (and some of its personnel), and so is exactly who Congress was (obliquely) referring to 13 years ago next week when it," issued the 2001 AUMF, Vladeck stated.  

     Is this a feasible legal interpretation that authorizes the president to engage militarily with the Islamic State?  According to Lederman, "Congress did, of course, authorize the President to use all necessary and appropriate force against al Qaeda, because that organization had attacked this nation and was dedicated to further such attacks.  If al Qaeda then split into factions, each of which continued to attack the United States, then why would it be a mistake to view the AUMF as continuing to encompass both hostile factions–especially if, as the Administration’s statement argues, each faction’s attacks continue to be in the service of the al Qaeda objectives that prompted the 9/11 attacks?"  On the other hand, Lederman also noted, "To use an extreme analogy:  If Germany were today to start attacking U.S. persons, no one would think the December 11, 1941 Declaration of War would authorize the President to use extensive, prolonged force in response."  

     In terms of unilateral presidential authority to commit US military might abroad absent a constitutionally mandated congressional authorization for such, Deborah Pearlstein of the legal blog "Opinio Juris" draws upon a 2011 Office of Legal Council (OLC) memo regarding the use of force during the Libyan civil war that ousted Moammar Qaddafi.  According to the memo, "the President’s constitutional power permits him to use force without congressional authorization (1) if its use serves 'important national interests,' AND (2) if the use of force doesn’t rise to the level of a 'war' (based on the anticipated nature, scope, and duration of the planned operations), such that the power to launch it falls within Congress’ express constitutional power to 'declare war.'"

     Secretary of State John Kerry has noted that the US is not at war but rather the operations outlined by the president are a sustained counterterrorism campaign.  "What we are doing is engaging in a very significant counter-terrorism operation, and it’s going to go on for some period of time."  Despite the semantic distinction between war and counterterrorism, sustained operations generally require a congressional authorization, though of course, some legal scholars will disagree on constitutional grounds as it pertains to the "war making" clause.  However Ilya Somin, law professor at George Mason University, who has strongly advocated for a congressional authorization, wrote recently, "Claims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age. You don’t have to be a constitutional law professor, like the president, to see that." 

     Aside from what some may consider bunk legal authority or ambiguous legal authority, Michael Ramsey, law professor at the University of San Diego, describes why "no further authorization is needed" from Congress.  First, Ramsey believes that the 2002 AUMF, which authorized force in Iraq and is thought by many legal scholars to be much more limiting than the broad and expansive 2001 AUMF, provides enough legal cover for the president (since US troops were withdrawn from Iraq and Saddam Hussein was toppled, several experts believe the law is no longer valid.)  "Under that authorization [2002 AUMF], President Bush not only ousted Saddam Hussein but also fought the Sunni insurgency that arose in western Iraq after a post-Saddam government was installed in Baghdad.  President Obama continued the latter conflict until he withdrew U.S. forces in 2011.  The IS [Islamic State] is a direct descendant of the Sunni insurgent forces previously engaged by the U.S. in western Iraq -- indeed, it appears that it's really the same force, under a new name and a new leader (after prior leaders were killed by the U.S. and its Iraqi allies)," Ramsey wrote.

     Secondly, on constitutional grounds, Ramsey relies on the philosophy of Alexander Hamilton that "the President does not need authorization to respond to a declaration of war against the United States.  The constitutional limit is only on war initiation and does not extend to wars begun by the other side.  Hamilton made this point strongly in connection with the U.S. engagement with Tripoli in 1801: '[W]hen a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary.'"

     After taking a look at the various legal arguments, should the president go to Congress even if he has the authority to act alone?  The Constitution is explicit in Congress' war making authority and its founders were wary about giving this authority to one man.  Unfortunately, the political volatility in Congress today likely contributed to the president's rebuke to the legislature.  Last year when the president asked Congress for an authorization, they appeared to lean against it (though it never officially came to a vote and the situation deescalated when the administration negotiated the removal of Syria's declared chemical weapons as a sufficient remedy to the Syrian government's attack and US retaliation.)  

     As American University professor Jennifer Daskal wrote recently regarding the president's decision to not go to Congress regarding the use of force, "So how did this happen? The answer seems to be politics over law.   By all accounts, Congress did not want to vote on any authorization for conflict before the November elections. After all, it is easier not to make hard decisions. It is easier not to have to explain a potentially tough vote to constituents in the coming election. And it is much easier to criticize the President for not having a strategy than actually adopting a strategy oneself."  The president did ask Congress to authorize the funding of so-called moderate Syrian rebels to serve as the boots on the ground rather than committing US forces because there is no way the president can get around the congressional powers of the purse.  Congress could decide not to fund the rebels, which would be a huge blow to the president's four point strategy to combat the Islamic State.

     The president, one may argue, also seemed to challenge Congress in his speech on Wednesday; "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. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger."    

     President Obama is absolutely correct that the nation is strongest as a nation when the president and Congress work together.  In addition, the president as a candidate for the office, vowed to curtail the supposed executive usurpation by the previous administration.  As several pundits have noted, the president stated in an influential 2013 speech that the 2001 AUMF should be reformed, yet he is now expanding its authority to previously unknown proportions, well past its inception by Congress according to some.  By not going to Congress, President Obama is setting a precedent that future presidents may expand upon.  It appears as if the power of the legislature is waning in terms of war making ability as the president has also apparently found a loophole around the 60 day limit under the War Powers Resolution.  Despite the apparent legal authority argued by highly intelligent and persuasive administration legal advisors, do the American people really want to see their representatives' (despite the volatility in Congress and between Democrats and Republicans) power whittled-down?  Such action could have grave consequences for the relevance of the United States Constitution, a document that validates the oldest and most successful constitutional democracy in the world.        



UPDATE: September 12, 2014 Note - according to Pentagon press secretary Navy Rear Adm. John Kirby, "The United States is at war with the terror group ISIL, 'in the same way we're at war and continue to be at war with al-Qaida and its affiliates.'" 
 

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