ISIS

The Unlawfulness of Obama's ISIS Plan

Is the White House planning to run this war directly as LBJ did in Vietnam?

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White House/Instagram

As the debate rages over whether the president needs congressional authorization for war prior to his deployment of the military to degrade or destroy ISIS, the terrorist organization that none of us had heard about until a few months ago, the nation has lost sight of the more fundamental issue of President Obama's infidelity to the rule of law.

On the lawfulness of his proposed war, the president has painted himself into a corner. Last year, he quite properly recognized that the Authorization for Use of Military Force (AUMF), a statute enacted by Congress in 2002 to permit President George W. Bush to use the military to track down, capture, degrade, or kill all persons or organizations that planned the attacks of 9/11, cannot apply to organizations that did not exist at the time of 9/11, of which ISIS is one.

That leaves the president with two remaining alternatives. One is the War Powers Resolution (WPR), a statute enacted by Congress in 1973 to limit presidentially ordered military invasions absent congressional assent to 180 days or fewer. But the WPR is unconstitutional, as it consists of Congress giving away to the president express authority to declare war, which the Constitution delegates to Congress. The Supreme Court has prohibited such giveaways of core powers and responsibilities from one branch of the federal government to another.

Even if Obama decides to rely on the WPR, and expects that no federal judge will interfere with that decision, his military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone.

The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war. But Obama has not yet asked for such a declaration. Why not? No doubt, he has two fears. One is that Congress will impose restrictions on the location and duration of hostilities, unlike the AUMF, which is open-ended. The other is that he will disaffect his loyal political base by doing what he promised he would never do: bring the country into another offensive war in the Middle East.

In 2008 and in 2012, Obama ran as a candidate and an incumbent determined to end American military involvement in the Middle East, not increase it. Hence his promise, by now made many times, that he will not introduce ground troops into this war. Apparently, just as when he bombed Libya into chaotic instability in 2010, he does not consider bombs an act of offensive warfare.

But he does consider the use of boots to be an act of war. When the president promises no ground troops, note the phrase he uses: "No boots on the ground." This is a term of art that apparently has different meanings to different folks.

There are already more than 1,000 pairs of American military boots on the ground in this effort to destroy ISIS. Yet, because they are not yet directly engaged in the use of violence in pursuit of ISIS fighters (they are training others to do so or finding targets to destroy by air), or because they are Special Forces and thus out of uniform (but no doubt armed and violent and wearing boots), the president feels he has a clear conscience when he says there are no boots on the ground.

When he says that, he means, "There is no one in an American military uniform shooting from the ground at an enemy target"—but there are military personnel in uniform on the ground, and there are military personnel out of uniform shooting ISIS fighters. Is this hair-splitting language consistent with the president's moral obligation to be truthful to us?

In another deceptive move, Obama announced on Monday that the operation against ISIS, whether authorized by Congress or not, will be directed by retired Marine Corps General John Allen. This is a novel use of government assets, as Allen is no longer a part of the Pentagon and thus not subject to the military chain of command. Apparently, the president does not trust his military advisers, whose advice he has repeatedly rejected, to run his war. Is the White House planning to run this war directly as LBJ did in Vietnam? Is the State Department? How can a civilian who is not the president command military troops?

On Monday of last week, the White House announced that in its pursuit of ISIS, the U.S. will go wherever it finds ISIS targets, and if ISIS hides in Syria and the government of Syria does not permit U.S. jets to use its airspace, the U.S. will attack Syria. That sounds like Russian President Vladimir Putin in the Ukraine.

Attacking Syria because its government denied the U.S. airspace would be an unprovoked and unlawful act of war that would probably provoke Putin. Congress rejected declaring war on Syria just a year ago. If it does so now, there would be no lawful or moral basis for such a declaration, as Syria is a sovereign country, lawfully entitled to control its airspace, that poses no present threat to American freedom or security. The U.S. can no more legally commandeer Syrian airspace than Syria can commandeer ours.

Something is amiss here. Last year the president wanted to help ISIS indirectly by degrading the Syrian military. Now he wants to help Syria indirectly by degrading ISIS, but only if Syria stays out of our way. And he is prepared to violate the Constitution, break the law, and lie to the American people to achieve his purposes.

Why all the unlawfulness, when he could and should leave these disputants to their own devices and keep the American military at home for genuine defensive purposes?

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  1. But Obama has not yet asked for such a declaration. Why not?

    I’m gonna take a shot in the dark here: Because Fuck You, That’s Why?

    1. WTF? It’s like people expect Obama to be a Constitutional Scholar or something. Get off his back. He’s just an Indonesian kid with a dream.

      1. ^This made me laugh so hard!
        Well done.

  2. If a president breaks the law in the woods and there’s no other branch of government there willing to do anything about it, does it make a sound?

    1. Depends whether there’s a “D” or an “R” after his name. As far as the media are concerned, anyway.

    2. It makes the sound of tearing parchment.

      1. And, shortly afterwards, the sound of flushing parchment.

        1. Tearing parchment, then the sound of parchment being wiped across a freshly soiled ass, then flushing parchment.

  3. Even if Obama decides to rely on the WPR, and expects that no federal judge will interfere with that decision, his military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone.

    So if the objectives can be achieved with air power alone, then the president can ignore the WPR? What about only using drones? What if some of those drones are on the ground? Armed ground drones will be a major part of our military within a generation. I’m sure wanna-be presidents are salivating at the thought.

    1. So long as those ground drones are not wearing boots, it’s all good.

      1. Well technically, those drones could be wearing boots as long as the boots were,say, on the top of the drone.

        1. Boots on your head!
          Boots on your head!
          Lookin’ like a fool
          whicha boots on your head!

          With your helmet on sideways
          lookin’ like Dukakis
          lookin’ like a fool
          whicha BOOTS on your head!

          1. “I came to kick ass and chew bubblegum,
            and I’m all out of gum…”

            http://www.youtube.com/watch?a…..ByKugyIu4c

        2. Vermin Supreme 2016 !!!

    2. I think that’s more a litany of all the expert military advice that Obama’s ignoring with this “intense counterterrorism operation” than a loophole in the WPR.

  4. 1) “The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war.

    HAAAAAAAAAAAAAAAAAAHAHAHAHAHAHAHAHAHAHAHAHA (breaaaath) HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

    2) “But Obama has not yet asked for such a declaration. Why not?

    Because they would grant it, and then it would be HIS.

    1. Wouldn’t it be more his if he went ahead and did it without one?

      1. Afghanistan and Iraq are Bush’s wars even though he got Congressional approval (inculding many Dems). Somehow the Libyan mess doesn’t belong to Obama though.

        So whether Congressional approval happens or not seems to be irrelevant.

        1. A Nobel Peace Prize covers over many sins.

        2. Tell that to Hillary Clinton.

  5. Why wouldn’t he invoke this as his justification?

    http://en.m.wikipedia.org/wiki/Iraq_Resolution

    1. Because we’re not fighting the Iraqi govt, let alone the Iraqi govt that existed in 2002.

      1. But but… it’s sort of, kind of in the same area! And once we have declared war on anybody, we can use that forever! Germany better watch out!

  6. On Monday of last week, the White House announced that in its pursuit of ISIS, the U.S. will go wherever it finds ISIS targets, and if ISIS hides in Syria and the government of Syria does not permit U.S. jets to use its airspace, the U.S. will attack Syria.

    Did he actually say we would attack the Assad govt under that circumstance? I thought he said that we would just ignore Assad’s wishes in the matter, not actually attack him.

  7. The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war.

    Or he could ask for a separate AUMF. Napolitano is implicitly recognizing the lawfulness of AUMFs in this article.

  8. my buddy’s mom makes $82 /hr on the computer . She has been fired for nine months but last month her payment was $16443 just working on the computer for a few hours. i was reading this…………

    http://www.Jobs400.com

  9. In practice the president is commander in chief of the armed forces and nothing other than impeachment or Congress defunding the military and overriding his veto can check anything he wants to do, anywhere in the world militarily. The WPR is a dead letter as there’s no stick.

    1. I know it’s a complete fantasy, but if the Pentagon refused to follow his orders on the basis that they are unconstitutional, he’d find his power pretty well checked.

    2. In practice the president is commander in chief of the armed forces

      In (legal) practice, the president is commander in chief of the armed forces of the United States only: after Congress has declared war, or if there is an active invasion/attack.

      1. There must be some parts missing in my copy of the Constitution, cause I don’t see any mention of those qualifications.

        1. Then you are voluntarily ignorant. The Constitution grants power to the branches of government. Congress may declare war and the president is commander in chief only during a time of war, or to repel an active threat. In other words, the president may not commit US forces to an offensive operation without a declaration of war from the congress. “Deductive reasoning”: What is it?

          1. Uhm… No.

            The Constitution, Article II, Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”

            The only condition upon when he is CiC is of the Militia when they are called to service.

            1. One might try to argue that the Founders did not envision having a standing United States Army. But there was never a prohibition against a standing Navy.

    3. I’ve often thought of bringing a court case should I deploy under the auspices of the WPR. I should, I think, have standing, but my law school days were many moons ago. What a way to end my military career ! Out in a true blaze of glory and GOMAR’s !!!!

  10. It sounds like Allen is going to be working to bring more countries on board and organize who is doing what, not commanding troops. ISIS War Czar?

  11. Why does he raise his chin like that?

    It reminds too much of tin pot dictators including Mussolini.

    1. Rufus Doofus,

      When you become President, you can show the people of this nation the proper way for a leader to hold his head. Will you be running on the repooplican or the democracy ticket?

      1. Turd.Burglar.

        1. JPyrate,

          Get some new material or shut the fuck up, you fucking child.

      2. Whatever you say.

        Which isn’t much.

        1. Rufus J. Dumbass

          Hi Asshole

          Probably not much to semi-literate types such as yourself.

          You have a nice day, you worthless piece of trailer trash shit.

          1. You bet.

            1. Someone’s having a m o me n t.

          2. Hi Mary.

            He lives in a much bigger house than you. At least twice the size, in fact.

  12. Keeping the American Military at home “for genuine defensive purposes” for this author might just mean that they (the American Military) should not be running all over the globe getting involved in the civil wars and other problems of all those armpit nations out there.

    In which case the American Military could probably be deployed to our International Border with Mexico where they could rightly defend the United States of American from the invasion of drugs, terrorists, illegal weapons, sex traffic, cheap labor, and disease epidemics.

    1. Look, it’s cheap labor! And it’s coming right for us!!

      1. And your point is? If you don’t like my opinion, then refute it with something a bit more intelligent than some dimwit remark. Otherwise, you need to fuck off.

        1. My point is that even if you think cheap labor is a bad thing (I don’t), it hardly rises to the level of a threat to national security that would require a military response. I’d say the same of (consenting) sex workers and drugs. Illegal weapons may be a bad thing and human trafficking absolutely is, but neither requires a military response. The appropriate mechanism for dealing with them is law enforcement.

          If terrorists and disease epidemics were actually coming across the border in any significant way, then you might have an argument for deploying the military. But neither of those things are happening, so you don’t.

          And I thought my remark was funny. It references South Park, a very funny show, and was meant to disparage your fear of cheap labor and other non-threats (or at least threats that don’t rise to the level of a national crisis requiring a military response). Using humor is a pretty common way of illustrating the absurdity of an absurd position. Hardly unintelligent and dimwitted.

          1. LynchPrick1477,

            You must be an Open Border Advocate. You seize on my cheap labor words but totally ignore the drug traffic and illegal arms.

            For those of your ilk, having an open border with Mexico is no problem at all. But don’t worry, your side will win anyway.

            Because of your stance, the border will continue to bring a flood of people into this country, along with all the drug traffic, and illegal weapons.

            This flood of people doesn’t give a shit about the U.S. in any way. They don’t care about speaking English. They sure as hell don’t give a fuck about the U.S. Constitution, much less the history that produced it.

            So cheer up, because your side who really doesn’t give a damn about the U.S. is winning.

            If you are not too busy down at your trailer court, maybe you can tour our border with Mexico and hand out big fucking welcome fruit baskets to the illegals.

            Have a nice day.

            1. I think arrangements could be made for an open border with Canada, and I’d support that. Not Mexico, given it’s current state. But way to assume facts not in evidence.

              If you go back and read my post, you’ll see where I explicitly addressed drugs (I don’t think they should be illegal in the first place) and illegal weapons: regardless of what you think their legal status should be, smuggling is a problem for law enforcement, not the military.

              And although I don’t advocate an open border (i.e., no checkpoints) with Mexico, I do think that people who want to come here and work should be allowed to following a background check and health screening. I don’t really care if they speak English because being spoken to in my preferred language isn’t a right. And statistically, their kids will almost certainly end up speaking English, and their grandkids probably won’t even know much of their grandparents native tongue. And you can teach people about the Constitution and the history that produced it, just like I was taught. I was native born but I didn’t leap from the womb suddenly caring about freedom and the Constitution.

              I’m not sure what side I’m on, but I wasn’t aware the U.S. was in a competition with immigrants.

              I don’t live in a trailer court and my Church does do outreach in the Hispanic community.

              Anything else you want me to correct you on?

              1. LynchPrick

                You are a fucking literary genius. Keep up the good work.

                1. I’m happy I could help you.

            2. And going back to your larger point about using the military on the border, the primary (sole?) job of the military is (or should be) to annihilate threats to our safety and security. So in advocating for using the military to protect the border, you’re basically advocating the destruction of anyone and anything that crosses the border without the proper permission slip. Think about that. It isn’t all, or even mostly narco and weapons traffickers. Do you want drones taking out men, women, and children who are crossing the border so they can work and supply you with goods and services that make your life better at lower prices than would otherwise be possible? You really want to start killing people without investigating who they are, why they are doing what they are doing, or determining through due process whether they pose a threat? If the answer is no, then you don’t really want a military response on the border. If the answer is yes, then I have no respect for your ability to act morally.

        2. My point is that even if you think cheap labor is a bad thing (I don’t), it hardly rises to the level of a threat to national security that would require a military response. I’d say the same of (consenting) sex workers and drugs. Illegal weapons may be a bad thing and human trafficking absolutely is, but neither requires a military response. The appropriate mechanism for dealing with them is law enforcement.

          If terrorists and disease epidemics were actually coming across the border in any significant way, then you might have an argument for deploying the military. But neither of those things are happening, so you don’t.

          And I thought my remark was funny. It references South Park, a very funny show, and was meant to disparage your fear of cheap labor and other non-threats (or at least threats that don’t rise to the level of a national crisis requiring a military response). Using humor is a pretty common way of illustrating the absurdity of an absurd position. Hardly unintelligent and dimwitted.

          1. “If terrorists and disease epidemics were actually coming across the border in any significant way, then you might have an argument for deploying the military. But neither of those things are happening”

            I certainly and sincerly hope you are correct, but my spidey-sense warns me you may soon be wrong on both counts.

            1. *and sincerely too.

            2. You must be another open border advocate. Read “Whatever It Takes” by J.D. Hayworth and then tell me what you think.

            3. It’s been 13 years since 9/11 and I’m not aware of any terrorist coming across the Mexican border. And 9/11 was hardly the birthday of international terrorism. We shouldn’t let the lack of a terrorist crossing the border blind us to the possibility that it could happen, but any infiltration is likely to be small, and you have to ask what an appropriate response would be, and what good it would do. Do we really want to TSA-ify the border? I don’t.

              As for disease, that might be a bigger threat in its potential to cause widespread death, but also an impossible one to predict. Personally I’d be more afraid of air traffic than the Mexican border, if I were inclined to be afraid of this at all. But I’m not. The next Spanish flu could be lurking in Mexico as we speak, or it could be lurking in Iowa, or it could be 200 years down the road. It’s prudent to be aware of the danger that epidemics pose and to try to be robust to them, but not to freak out worrying about what might be.

              I’d say the best way to guard against both possibilities is to give people who want to come to the U.S. for totally legitimate reasons an easier path for doing so. That reduces the noise in the illicit pathways that people use to cross the border, making it easier to identify those that might have truly nefarious purposes or be carrying the next super bug.

    2. “could probably be deployed to our International Border with Mexico”

      Yes, they can join Texas law enforcement in man-hunting pesky anti-immigration militias.

  13. The Arabs are an expensive way to keep our fucking swords sharp.

  14. “But Obama has not yet asked for such a declaration. Why not?”

    Could it be that Democrat House members don’t want to go on the record on this issue until AFTER the November election?

  15. This sucks! I’m going to have to join one of the many anti-war protests springing up around the country.

  16. “And he is prepared to violate the Constitution, break the law, and lie to the American people to achieve his purposes.”

    And this is different from the day he was sworn into office, how exactly?

  17. Only A Thought

    “The enemy of my enemy is my friend.” -from Sanskrit

    Here’s a thought for the USA in the Middle East. Get out … but provisionally and on our terms.

    Let’s not forget, although rarely mentioned, that Bush the First ignited this conflagration by double-crossing our ally in Iraq, homicidal thug that he was, Saddam Hussein. We began it, but we can’t finish it … unless … unless, possibly … ?

    Make a deal with ISIL or whatever it calls itself at the moment? Let’s not forget, also, that an ally is merely someone else with a common interest at the moment. Do ISIL and the USA have any interests in common? Despite the despicable acts of ISIL, could it be?

    Would it be possible to make a deal with ISIL? Who knows? Perhaps, it’s possible. Besides, have you got a better thought? Another Viet Nam after Afghanistan and Iraq … forget about Libya?

    Right! What about Obama, Kerry, and the rest of that inept cabal? Ah, the consequences of setting a nation on fire (www.inescapableconsequences.com).

  18. Something is amiss here. Last year the president wanted to help ISIS indirectly by degrading the Syrian military. Now he wants to help Syria indirectly by degrading ISIS, but only if Syria stays out of our way. And he is prepared to violate the Constitution, break the law, and lie to the American people to achieve his purposes.

    Why all the unlawfulness, when he could and should leave these disputants to their own devices and keep the American military at home for genuine defensive purposes?

    It’s quite simple: he’s an incompetent fucktard who has no idea what the fuck he’s doing when it comes to foreign policy (or much of anything else).

    He’s literally just making shit up as he goes, there’s no overarching plan or policy in place, it’s just “Who dissed me today? Let’s fuck them up!” Last year Assad dissed him by crossing his bullshit “red line,” now it’s ISIS doing the dissing by lobbing off a couple of journalist’s heads. He has no idea what the fuck he’s doing and neither does any of his clown posse: John Kerry, Susan Rice et al.

  19. Note: The following comment should be read with Chopin’s Waltz No. 14 in E Minor gently playing in the background.

    Is this really Obama’s plan?
    Not sure the POTUS is totally compos mentis.

    Hi, my name is Barack Obama and I’m here to wear suits, shake hands with diplomats and play ball…because if I go against the grain–well hell, we all know I’d get snuffed out like a candle in the wind.
    Sorry, got to run…I have a tee-time at 10:48.
    Oh and don’t worry, everything is under control.
    Hillary is currently being groomed to fill my shoes. Well, not MY tradition-breaking shoes (cue the smug Obama chuckle)…because we all know she’s going to be wearing Allen Edmonds (Google it).
    Benghazi for the block…and the circle gets the square.
    Hillary is the man!
    God Bless!
    FOOORRRRREEEEEEEEEEE!!!!!

  20. We haven’t declared war since WWII because politicians determined it was safer just to give that responsibility to the president. If things go foul they can claim he acted rashly while if things go well they can crow that they wisely gave him permission to do it. Every good politician knows the first step in a successful crime is to set up a scapegoat just in case.

  21. my co-worker’s sister-in-law makes $71 /hr on the internet . She has been fired from work for nine months but last month her payment was $21498 just working on the internet for a few hours. why not find out more….

    ???????? http://www.netjob70.com

  22. I fear that what is really going on is an attempt to arm radical islamist in the guise of helping to rid the US of the threat. Was it intenational to vacate Iraq and leave all our hardware to ISIS? Why would not the same scenario play out with Syrian “moderates”. We are arming our adversaries with the best weaponary their money doesn’t have to buy. It is only a matter of time that this newly reconstituted “army of allah” is a well equipped force to be reckoned with. Conspiracy or lunacy…you be the judge. Time to let them kill each other. We should watch from the sidelines.

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