Over at The Daily Beast, national security reporter Eli Lake analyzes the are-you-effin'-kidding-me news that the same politician who came into office stating plainly that "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," and who as recently as last year was lobbying Congress to repeal the Sept. 14, 2001 Authorization for the Use of Military Force Against Terrorists (AUMF) on grounds that it may lead to a "perpetual war," is using the very same AUMF as its legal justification for the new Iraq/Syria war. Excerpt:
Obama's using the law that authorized attacks against al Qaeda to justify his new fight in Syria and Iraq. One small problem: ISIS and al Qaeda are at each others' throats. Legal experts were shocked [….]
"On its face this is an implausible argument because the 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States," said Robert Chesney, a professor at the University of Texas School of Law. "Since ISIS broke up with al Qaeda it's hard to make that argument." […]
"I think they are going to get more heat for this implausible interpretation of the 2001 AUMF than they realize," said Jack Goldsmith, a Harvard Law School professor who served as assistant attorney general at the Justice Department's Office of Legal Counsel in 2003 and 2004.
Benjamin Wittes, a senior fellow and research director in public law at the Brookings Institution, said the legal argument was a "very thin reed."
"If they are relying on the 2001 AUMF for this, then what the president is saying is, essentially: This war, like all wars, must end; we can't have endless wars; stop me before I sin again," he added. […]
Wittes said that he took an expansive view of what would constitute associated forces for the 2001 AUMF. But he observed, "Surely associated forces doesn't mean forces that are actively hostile and have publicly broken with and been repudiated by al Qaeda. Whatever 'associated' means, I don't think it means that."
One Obama administration official said the argument that the new war is legal under the 2001 AUMF stems from the fact that ISIS began as a franchise of al Qaeda.
For those anti-Bush multilateralist Democrat types, Lake also points out that the war violates the United Nations Charter as well. Whole article here; you may also re-consult Lake's prescient 2010 Reason piece on "The 9/14 Presidency."
The aforementioned Jack Goldsmith also has Time column out titled "Obama's Breathtaking Expansion of a President's Power To Make War." The sharp lead paragraph:
Future historians will ask why George W. Bush sought and received express congressional authorization for his wars (against al Qaeda and Iraq) and his successor did not. They will puzzle over how Barack Obama the prudent war-powers constitutionalist transformed into a matchless war-powers unilateralist. And they will wonder why he claimed to "welcome congressional support" for his new military initiative against the Islamic State but did not insist on it in order to ensure clear political and legal legitimacy for the tough battle that promised to consume his last two years in office and define his presidency.
Goldsmith link comes via the Twitter feed of former Obama-administration Pentagon employee Rosa Brooks, which is filled with piss and vinegar about the choices by her former boss.
After the jump, if you have an iron stomach, are some comments the president made last year about repealing the AUMF.
[T]he choices we make about war can impact—in sometimes unintended ways—the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.
The AUMF is now nearly 12 years old. The Afghan war is coming to an end. Core al Qaeda is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al Qaeda will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don't need to fight, or continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states.
So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF's mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That's what history advises. That's what our democracy demands.
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