Still no legal authorization for the war against ISIS

|The Volokh Conspiracy |

US forces have now been fighting the ISIS/Islamic State terror movement for almost a year. But the Obama administration still lacks congressional authorization for the war, and still hasn't provided a compelling rationale for why the war can be legal without it. Marisa Taylor and Jonathan Landay summarize this sad state of affairs in a recent McClatchy article:

As U.S. military operations against the Islamic State approach the one-year mark, the White House has failed to give Congress and the public a comprehensive written analysis setting out the legal powers that President Barack Obama is using to put U.S. personnel in harm's way in Iraq and Syria.

The absence of an in-depth legal rationale takes on greater urgency with Obama's decision this week to dispatch up to an additional 450 U.S. military trainers and other personnel to Iraq and to establish a second training site for Iraqi forces in war-ravaged Anbar province, most of which is under Islamic State control.

The only document the White House has provided to a few key lawmakers comprises four pages of what are essentially talking points, described by those who've read them as shallow and based on disputed assertions of presidential authority….

In his secretive and expansive view of presidential powers, some experts see Obama following the lead of his predecessor, George W. Bush.

At various times, administration officials have suggested that the war against ISIS might be authorized by the 2001 Authorization for the Use of Military Force against al Qaeda, the 2002 AUMF against Saddam Hussein's regime, and by theories of inherent presidential power, among other rationales. But each of these theories has serious flaws, and—if taken seriously—could give the president nearly unlimited authority to initiate war. Ironically, some of the administration's arguments are similar to controversial former Bush administration official John Yoo's rationales for nearly unlimited presidential power in this sphere.

Admittedly, the president did ask Congress to pass an ISIS AUMF in his State of the Union address, and the administration submitted a draft to lawmakers in February. But the proposal had so many flaws that it was met with deep skepticism by both Democrats and Republicans, as well as many academic commentators. Both the administration and Congress deserve blame for not making more of an effort to pass a better, revised version.

The administration seems to want to have its cake and eat it. It would like congressional authorization, but does not want to admit that the war is illegal without it. Congress could, however, help solve that problem by including a provision in a new AUMF that indicates that it is the sole, exclusive source of legal authority for the war.

The lack of congressional authorization for the war is of more than just purely legal interest. Obama's failure to obtain congressional authorization is part of a broader failure to build a political consensus behind the intervention, and to articulate clear objectives for it. Knowing that he lacks broad support and that he will bear all the political risk should things go wrong, the president has been extremely cautious in his actions. The result is an intervention large enough to clearly involve the US in the fighting, but not large enough to actually strike a decisive blow against ISIS. The limited scale of the intervention reduces political risk for the administration, and keeps US casualties low. But, geopolitically, it saddles the US with the risks of intervention (including the potential damage to US credibility if the intervention fails), while greatly diminishing the chance of a successful outcome.

One of the main justifications for the Constitution's requirement that presidents can only initiate war if they have congressional authorization is to ensure that any such war is backed by a broad political consensus. If we decide to fight a war at all, it should only be in cases where there is widespread agreement that the war is justified, and that we will do what is necessary to prevail. At least so far, the president's war against ISIS has been a lesson in the dangers of launching a military intervention without that kind of political support. The administration's previous unauthorized war— the 2011 Libya intervention—has also led to dubious results, with radical Islamists now controlling large parts of the country. In that case, too, the failure to get broad political support was one of the factors that led the administration to launch a very limited intervention—an effort large enough to help ensure that that Qaddafi regime would fall, but not large enough to forestall gains by groups that are just as repressive and probably more dangerous to US interests. Often, a tepid, severely limited intervention is more dangerous than either larger, more decisive one, or staying out of the conflict altogether.

Hopefully, it is not too late for us to relearn the virtues of sticking to the constitutional principle that then-Senator Obama effectively articulated in 2007: "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."

UPDATE: One small silver lining of this situation is that the Obama administration's failure to get congressional authorization and dubious legal rationales for the war have attracted extensive criticism from both Democrats and Republicans. For example, the McClatchy article quotes Virginia Democratic Senator Tim Kaine, a longstanding critic of the administration on this issue. Kaine has recently called for a new congressional effort to pass an AUMF, in conjunction with Republican Senator Jeff Flake. Among other things, their draft includes a valuable provision that specifically states that the new AUMF would be the sole legal authority for the war against ISIS, ruling out the administration's dubious reliance on the 2001 and 2002 AUMFs, and on claims of inherent presidential power. Whether such efforts produce any beneficial results remains to be seen.

UPDATE #2: The full text of the Flake-Kaine draft is available at Sen. Kaine's website here.

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