Obama on His Unauthorized War Against ISIS: I'm Not Hearing 'No'

The administration argues that Congress has implicitly consented to new military operations in Iraq and Syria.


U.S. Army

Responding to a lawsuit arguing that the U.S. war against ISIS is illegal because Congress never authorized it, the Obama administration argues that Congress kinda-sorta did, since it appropriated money that is being used to fight the terrorist organization. The administration's brief, filed on Monday, cites $5.6 billion that Congress approved in December 2014 for "overseas contingency operations to counter ISIL" (another name for ISIS), language in the National Defense Authorization Act (NDAA) for fiscal year 2015 that authorized the Defense Department to help Iraqi security forces defend their country against "the threat posed by [ISIS]," a 2016 appropriations measure approving "additional funding…to conduct counter-ISIL operations," and the NDAA for fiscal year 2016, which expressed  "the sense of the Congress" that ISIS "poses an acute threat to the people and territorial integrity of Iraq" and that "defeating ISIL is critical to maintaining a unified Iraq." 

None of these measures explicitly authorized the U.S. war against ISIS, and each of the appropriations bills warned that "none of the funds made available by this Act may be used in contravention of the War Powers Resolution," which requires the president to get congressional permission within 60 days of introducing U.S. forces into hostilities or, failing that, withdraw them within 90 days. That law says Congress may not authorize military operations through an appropriations measure unless it "states that it is intended to constitute specific statutory authorization."

The lawsuit to which the administration is responding was brought by Nathan Michael Smith, an Army captain who works at the Kuwait headquarters of the combined joint task force overseeing the forces fighting ISIS in Iraq and Syria. He is seeking clarification of the war's legal status, arguing that participating in an unauthorized war would violate his oath to uphold the Constitution. Smith notes that President Obama has blatantly failed to meet the requirements of the War Powers Resolution, and he rejects the administration's implausible contention that the war against ISIS is covered either by the 2001 Authorization for the Use of Military Force (AUMF) against the perpetrators of the 9/11 attacks, which was approved before ISIS existed and which Obama himself describes as dangerously obsolete, or the 2002 AUMF in connection with the Iraq war, which Obama declared over in July 2014 and which in any event never involved military action in Syria.

The administration argues in a footnote of its brief seeking dimissal of Smith's lawsuit that the provision of the War Powers Resolution requiring explicit authorization of military deployments is unconstitutional because one Congress cannot bind a subsequent Congress. But the Constitution can, and the War Powers Resolution is aimed at preventing the president from rendering meaningless the power "to declare war," which the Constitution unambiguously assigns to Congress. If presidents were free to use military force around the world at their sole discretion, there would be no need for such declarations.

Still, the pieces of legislation cited by the administration show that congressional capitulation has combined with presidential presumption to make the war power all but irrelevant. Members of Congress, who could authorize the war against ISIS if they think it's a good idea or defund it if they don't, have chosen to do neither. They prefer to have it both ways, avoiding the blame for failing to confront ISIS while disowning responsibility for a war that may go terribly wrong. While Obama never got permission for his war, the administration notes, "Congress has not enacted legislation, or even passed a resolution, indicating its opposition to the President's military actions against ISIL." That leaves soldiers like Smith to choose between obeying orders or obeying a Constitution that commands respect on Capitol Hill only when it's convenient.

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  1. I know somebody who just ended his career. Guess that makes this a principled stand.

    …see, Bernie, what principles look like?

    1. No one needs 27 kinds of principles.

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      1. Did she take the job on principle?

    3. You jest, but I wouldn’t be surprised if, after the court dismisses his suit because FYTW, he ends up getting court martial-ed for dereliction of duty.

    4. Captain Nathan Michael Smith has my respect.

  2. ‘The Congress spent all that money of these war toys.They must have wanted me to use them’ Roll that beautiful drone footage.

  3. one Congress cannot bind a subsequent Congress

    What? The current Congress can only change the salaries of subsequent Congresses. And I’m pretty sure all the law don’t expire every two years. Since this is statutory, if the current Congress doesn’t like it, they can repeal it. What a disingenuous argument.

    1. I have seen this argument before (about not binding future Congresses) and that is exactly what they mean — it’s just a law which can be revised or revoked at any time. It’s not like a law binding a regulatory agency, which the agency can’t change, nor like a Constitutional amendment.

      It’s a wishy washy usage of “binding” but it’s what they have meant before. of course, prior meanings are not binding on future usage by us proles.

  4. That leaves soldiers like Smith to choose between obeying orders or obeying a Constitution that commands respect on Capitol Hill only when it’s convenient.

    In any case, it appears Captain Smith has no plans for a further career in the United States Army.

    1. Which is sad, because we could use more officers like him

    2. He will subsequently be accused of sexual harassment or something, and be drummed out of the service.

  5. “Not saying no means yes”
    – Things I learned from a progressive president.

    1. Affirmative consent, military style:

      Obama: If I were to bomb ISIS, would you construe that as unconstitutional or give your willing consent?

      McConnell: Consent, of course.

      Obama: Continuing in that line of thought, how would you feel if I were to deploy ground troops in and around the Fertile Crescent?

      McConnell: Just do it already!

      1. the Fertile Crescent

        These euphemisms…

  6. He does have a point. No one is stopping congress from saying no. In fact, no one has stopped them for the last…uh…how long have they been dodging responsibility?

  7. I’m curious…what legal protections does a soldier have that he won’t suffer retaliation for suing the President…and will these legal protections, if any, be more theoretical than real?

    1. Or maybe it could be like the movies…a soldier falls out of favor with his superiors for BS political reasons, then a crisis emerges and he is brought back to deal with it…

  8. So he subscribes to the Bill Cosby school of foreign policy. That won’t get you out of a rape charge and it won’t get you judged kindly by history for stupid and unnecessary wars.

  9. I’m actually sympathetic to the idea of fighting ISIS, though I’d rather see it done by helping out reliable proxies than using American troops – once US troops are in, they might end up staying for “nation building” BS.

    1. I’d think Assad would be both willing and able to take care of them if we got off his back and stopped funding and equipping Al Nusra and the various other jihadi shitbags in Syria.

      1. Every time this comes up I have to ask: Why exactly are we trying to get rid of Assad?

        1. Because Arab Spring!

          Or for Monty Python fans, Arab Spring Surprise.

        2. Because we’re idiots with no coherent foreign policy. Either that or we’re fucking things up on purpose for some reason.

        3. I don’t recall him ever being particularly good before the war started, though I also don’t recall him ever being particularly awful compared to his neighbors. His own seem to have felt differently.

          Since the war he’s shown himself to be a Bad Dude. I guess you could make the excuse that he is fighting a civil war (not him specifically, of course, but you know what I mean).

          I really have no overwhelming desire to see our government help him or anyone else in this mess.

          1. What govt doesn’t turn into a Bad Dude once a war starts? Especially in the Middle East?

            1. Sure, but doesn’t make intentionally targeting civilians less bad.

  10. But… But… But… But..

  11. This just Rape Culture eximplifying itself throughout the land.

  12. Nathan Michael Smith, an Army captain

    Thing That Will Never Happen: Major Nathan Michael Smith.

  13. He is seeking clarification of the war’s legal status, arguing that participating in an unauthorized war would violate his oath to uphold the Constitution.

    “Inquiring minds want to know!”

    1. Be at ease in your mind.

      Obama is a genuine Constitutional scholar who is uniquely qualified to discern all the invisible writhing contained in that old document.

      He says it’s all good so just roll with it!

      1. “invisible writhing”

        Freudian slip.

  14. “overseas contingency operations to counter ISIL”

    At any rate, it’s not a war, it’s and overseas contingency operation, so it’s all good. /sarc

    1. +1 kinetic military action

  15. So now a constitutional violation is not a constitutional violation unless Congress passes a law telling the President to stop? Seriously?

    Refresh my recollection. Did Congress ever pass a law telling Richard Nixon he was not allowed to cover up Watergate? And did Congress continue to appropriate funding for the Nixon White House? So obviously Congress authorized the Watergate cover-up! I guess we got that all wrong…

    1. This guy gets it.

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