Is Obama's War Against ISIS Legal?

The president's rationalization for autocratic military action is a license for unchecked global war.


modified from delafuentegalvez/Flickr

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.

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  1. But what happens when he acts like an autocrat? Nothing.

    The Framers wrote checks and balances that future Congresses couldn’t cash?

    1. They could, they just won’t.

    2. Checks and balances have been replaced with rubber stamps.

    3. This could have been a great joke about not having a big enough balance to cash the checks.

      1. You’re going to far afield. This audience can barely digest the jokes I do make.

  2. “But what happens when he acts like an autocrat? Nothing.”

    Yep. Congressional Democrats march behind Obama in lockstep. Congressional Republicans offer no fight, but capitulate and surrender their constitutional power. Meanwhile, Obama seizes more power, the bureaucracy grows and issues further and deeper regulations, and the civil society breaks down.

  3. Republicans don’t want to rein in the President’s power, because they hope the next President will be a Republican.

  4. The really infuriating thing, to my mind, is that Obama could probably being doing much of what he is doing perfectly legally (or as perfectly legally as it gets, anyway) if he were willing to go to the trouble. The Republicans in Congress are likely more in favor of thumping Islamic idiots than not. The Democrats are firmly on his side. The Media has spent his whole administration sending him pash notes. But he simply can’t be bothered to do it by the book. He’s too important, and too busy working on his golf game.

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  6. Was there an expiration date affixed to the AUMF-2001 bill?

    1. Yes. The day the last terrorist dies.

  7. He’s in collusion with his partners in Congress to serve their bloody corporatist pumps and defraud us tax payers of millions and billions flushed down thePentagonToilet ? redistributing wealth from the poor and middle class to the super rich industrial military complex barons ? and wasting time and energy better spent on domestic programmes (revising the tax code, going “through the federal budget ? page by page, line by line ? eliminating those programs we don’t need,” collaborating to fix the economy, giving poor undereducated Americans greater hope and options for their lives than “volunteering” to escape dismal economic conditions at home to make a pittance risking sacrificing their lives for these idiots.

    1. Since the top 10% of earners – neither the poor or the middle class – pay 68% of tax revenues, your claim that “redistributing wealth from the poor and middle class to the super rich industrial military complex barons” is complete bullshit.

  8. King Obama, Lord of the Drones, knows what’s best.

    He has studied the constitution, the communist constitution, and it give Him the power to do as He wills.

  9. Read the title, concluded it was Richman. Moving on.

  10. No big fan, actually the opposite, of Oblama but:
    The president is Commander-in-Chief of the military – he can send them wherever he wants, to do whatever he wants.
    Congress gets to make the rules the military must follow but, unless they set up the Constitutional crisis of making a rule that the military doesn’t have to do what the Commander-in Chief tells them to, they only have one power by which to stop him – the power of the purse.
    If Congress refuses to provide money to the military for the actions the president orders, then there can be no funding for the operation, but Congress, for political reasons, has rarely refused funding.
    Declaring war is a formality, that could reasonably argued as only applying to other nations – not to ideological entities, but the post 9/11/01 AUMF is broad enough to allow what Oblama is doing.
    Congress just needs to have the collective balls to say: “No more money for that”.
    Gonna happen?

  11. “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.”

    The author has it back to front. It isn’t for the president to tell Congress or the public what his “legal authority” is. That’s Congress’s job!

    After all, Congress is the one which writes the laws, not the president. Those who would complain about executive overreach should be wary about endowing presidents with the power to dictate to Congress what should go into Acts of Congress!

    BTW, this article ignores the fact that Obama has already submitted a proposed AUMF to Congress, which thus far has studiously avoided voting on it for weeks.

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