Monday, September 29, 2014

More Confusion on Legal Reliance for Military Force: Politics of War

This article first appeared on The Epoch Times    


     The legal rationale set forth by the Obama administration to use force against the Islamic State group in the territories of Iraq and Syria, has been the subject of harsh criticism and creative legal crafting.  This discussion has become a riveting and at times frightening debate not only of the concern of the scope of executive power and interpretation but also of the lethargy of Congress as well as of the current political climate in Washington.

     Late last week, the Chairman and Vice Chairman of the House Armed Services Committee, Howard "Buck" McKeon (R-CA) and Mac Thornberry (R-TX), respectively, penned a letter to National Security Advisor to the president Susan Rice for clarification on the administration's position for their current military campaign against the Islamic State.  Specifically, the letter to Rice sought clarification on "the administration's position on authority necessary to defeat the [Islamic State] terrorist organization in Iraq and Syria."  McKeon and Thornberry raise a very interesting issue that many in the legal and punditry world have also raised - the administration's invocation of the 2002 Authorization for Use of Military Force (AUMF) for its justification of the military campaign against the Islamic State in Iraq.   I previously provided a background for various legal justifications for the recent military campaign in which the 2002 AUMF was outlined and was initially passed to justify the Iraq War in 2002.  McKeon and Thornberry asked for clarification from Rice after she penned a letter to Speaker of the House John Boehner (R-OH) stating, "we believe a more appropriate and timely action for Congress to take is the repeal of the outdated 2002 Authorization for Use of Military Force in Iraq...With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports repeal."   

     Specific questions the Chairman and Vice Chairman seek answers to are why the administration sought the repeal of the law if they are now using it and did they consult the Chairman of the Joint Chiefs of Staff, the Secretary of Defense, or the General Counsel of the Defense Department regarding their repeal request.  McKeon and Thornberry point out that military commanders are very rarely quick to limit their tools or to take tools off the table and that the administration made their repeal request without military consult for political reasons to reassure the American people that no US ground troops would be used in the new offensive.

     From a policy standpoint, the decision by the president to not use US ground troops is mostly political.  Several, if not all, of the president's military advisers have stated that boots on the ground will be necessary to ultimately destroy the Islamic State, though they can be degraded with just air power.  While the boots do not have to be American, a significant ground force is necessary (though the main push for ground troops is in Syria given that Iraq does possess an army while the United States has publicly stated their opposition to the Syrian government.)  President Obama campaigned to end the two wars his predecessor started and reintroducing ground troops would be wildly unpopular with the American public, and against his very fabric as a candidate.

     In terms of a political decision, which the no boots on the ground policy most likely is, Senator Tim Kaine (D-VA) recently gave an address at the left leaning Washington think tank Center for American Progress in which he described why in his bill for an Islamic State/Syria specific AUMF, he explicitly excludes US ground troops from being introduced.  Senator Kaine stated that he was struck by what Chairman of the Joint Chiefs of Staff General Martin Dempsey said at a Senate Armed Services Committee hearing where he asserted that the US cannot defeat the Islamic State (or ISIL as Kaine and others in the Obama administration prefer to call the militant group) if it is the west versus the Islamic State.  The only way the United States can win is if they are a part of a regional coalition that stands up to fight in their backyard for their territorial integrity.  Kaine stated he firmly believes in this policy-that if the US has to put boots on the ground, the region is not fighting for their own interests and no amount of US ground troops can win the fight for the region.    

     Getting back to the legality of the administration's new military campaign, Kaine also pointed out the paradoxical conundrum regarding the two fronts of the new campaign - Iraq and Syria.  Kaine stated that the US is on sound international legal ground regarding military intervention in Iraq because the Iraqi government specifically requested the assistance of the US, yet US domestic law is suspect (considering the 2001 AUMF only applies to al-Qaeda, which the Islamic State publicly split from and the aforementioned 2002 AUMF.)  In Syria, the US is not on sound international legal ground but has a plausible domestic law justification to attack al-Qaeda affiliated organizations within Syria's borders. 

     There are obviously legal cases to be made on both sides of the argument.  Creative and crafty lawyers are hired for the exact purpose of finding a justification within the confines of the seemingly narrow statutes as the 2001 and 2002 AUMF's (more so the 2001 AUMF).  However, no matter how broad the interpretations of statues are, the further the conflict progresses, the weaker and more attenuated the legal arguments become.

     The political climate in Washington is very chilly between Congress and the White House.  While the president has publicly stated that he wants the 2001 and 2002 AUMF's to ultimately be repealed, he understands that Congress is not quick to do anything these days.  Rather than seek a new authorization and possibly be embarrassed as the president was a year ago when asking for authority to strike Syrian President Bashar al-Assad in response to his use of chemical weapons on his own civilians, the president has relied on old statutes and blessings from Congressional leadership who also are fearful to fully address the issue for political reasons.  Congress has stated they will eventually take up the issue of authorizing force but not until after the 2014 November mid-term elections and possibly not until the new Congress, which would be convened in January according to a statement by Speaker Boehner.  While both Congress and the president have erred, the best thing going forward would be for Congress to take up an authorization and nip this problem in the bud rather than continue to politicize and polarize back and forth with the White House.         

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