Is Obama's War Against ISIS Legal?
The president's rationalization for autocratic military action is a license for unchecked global war.
King John of England, who 800 years ago this week was forced at Runnymede to affix his Great Seal to Magna Carta—which at least in theory subordinated his power to law—might have envied President Obama. Sure, Obama also pays lip service to idea that the executive is subject to law. But what happens when he acts like an autocrat? Nothing.
King John had to contend with rebellious barons who resisted his taxes to finance losing wars and other impositions. Obama has no effective opposition to contend with. He is free to fight wars as he pleases, never worrying that he might be deprived of the revenues he needs to engage in his far-flung killing.
We like to believe we've come a long way in those 800 years, but in important respects we have not. We've regressed, not the least in the sense that people no longer show an interest in resisting tyranny even through nonviolent non-cooperation.
Observe what Obama is up to in the Middle East. Marissa Taylor and Jonathan Landay of McClatchy recently noted:
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.
That's right. Obama has been at war with the Islamic State for a year, and his administration won't even do us the courtesy of spelling out his legal authority in detail. Lately, Obama has been intensifying his intervention in the areas that were formerly part of Syria and Iraq. He's setting up a new base in Iraq's Anbar province, which the Islamic State largely holds, and he's increased the number of so-called advisers and trainers. The force that we know of is up to about 3,500.
Obama has not been totally silent about his legal authority. "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," Taylor and Landay write (emphasis added).
Note: "to a few key lawmakers"—not to the public. I suppose the administration doesn't want us to worry our little heads over this.
Taylor and Landay speculate that "by not setting out its legal case in public documents, Obama may be trying to preserve his flexibility to authorize new operations against the Islamic State or other extremist groups elsewhere, unfettered by constraints that could be imposed by Congress."
Yet again, Obama sinks beneath George W. Bush. At first Obama invoked the allegedly inherent war powers of the presidency, ignoring the Constitution's delegation of the war power to Congress. (Important figures in early American history, notably John Quincy Adams, regretted that clause.) Then Obama claimed the 2001 and 2002 resolutions authorizing military force in Afghanistan (against those who carried out the 9/11 attacks) and Iraq as authority. But this has been ably rebutted by various people, who point out that the Islamic State is an enemy of, not associated with, al-Qaeda; had nothing to do with Iraq's Saddam Hussein; and did not even emerge until long after those resolutions were passed.
To complicate things, while Obama asked for congressional affirmation, he claimed he could legally fight his war without it. Congress's ineptitude in getting itself together on the question, with Democrats and Republicans having different reasons for not coalescing, suits Obama just fine.
Of course, what the country needs is not a declaration of war from Congress, but a demand that Obama stop fighting wars without it. Fat chance of that happening, though. Few members of Congress want the responsibility of blocking a war.
Obama's rationalization for autocratic military action is a license for unchecked global war. And that's what we've seen throughout his tenure in the White House. His administration brags that airstrikes recently killed terrorist leaders in Libya (maybe), where Obama helped overthrow a government four years ago, and Yemen, where Obama ordered even American citizens killed.
Where are the protests? Where are the organized tax strikes? King John would be green with envy.
This piece originally appeared at Richman's "Free Association" blog.
