Tag: AUMF; ISIS; war powers

Royal Prerogative in the War against ISIS

Events on both sides of the Atlantic yesterday made for an interesting contrast in the way Western democracies go to war. In the United Kingdom, they decided to actually have a vote before letting the bombs fly—with PM David Cameron winning approval in the House of Commons by a wider-than-expected 174-vote margin.

Meanwhile, the Washington Post reports that the Obama administration is sending a new Special Operations task force of some 200 soldiers to Iraq, to “enable the U.S. military to launch additional commando-style operations and increase intelligence collection, both in Iraq and in neighboring Syria.” Thus, while our cousins across the pond have secured legislative approval for war against ISIS, the “world’s oldest constitutional democracy” slips further toward a ground combat role in a war that the president ordered up some 16 months ago without a shred of legal authority. 

American’s fundamental law vests the decision to go to war in Congress. Under British law, however, the decision to use military force is a “prerogative power”—a decision taken by the Prime Minister “on behalf of the Crown.” “In constitutional terms Parliament has no legally established role and the Government is under no legal obligation with respect to its conduct.” And yet, in practice, as F.H. Buckley points out in The Once and Future King: The Rise of Crown Government in America, the British system has lately done a better job than the American one at forcing public deliberation over war: “the government’s day-to-day accountability before the House of Commons make[s] it far more difficult for a prime minister to disregard Parliament’s wishes.” Indeed, the last time Cameron contemplated airstrikes on Syria—over the use of chemical weapons in 2013—he had to abandon the idea after losing the vote in the House of Commons: “Parliament has spoken,” as Foreign Secretary William Hague summed up.

The U.S. Congress hasn’t spoken, in any formal sense, on our latest war in the Middle East, and it’s in no particular hurry to do so. The Obama administration continues to insist that, under the use-of-force resolution Congress passed over 14 years ago, it has all the legal authority it needs to wage war against ISIS, a group that’s also at war with Al Qaeda, the target of the original resolution. That pretext, offered mainly in unsigned “talking points” by anonymous administration officials, is too thin to hide the sweeping claim of executive war power on which the president’s war rests. Oddly enough, today royal prerogative thrives in the country that fought a revolution to overthrow it. 

President Obama Takes America Back to War in Iraq

U.S. military personnel are heading to Iraq and Syria. The administration continues its slow progression to renewed ground combat.

Defense Secretary Ashton Carter informed Congress that a “specialized expeditionary targeting force” would be sent to Iraq on top of the 3,500 personnel already there. They were sent with the authority to operate in Syria too. Where greater opportunities appear to work with local forces, he added, “We are prepared to expand it.”

Unfortunately, no matter how combat-effective these forces, they won’t turn around a 16-month deadlock. The more men and materiel the president commits to “win”–whatever that means–the more he will have to introduce after the failure of every successive escalation. The president’s promise not to commit “boots on the ground” was trampled underfoot in October, when a Delta Force soldier was killed while accompanying Kurdish forces on a raid in Iraq.

Presidential wannabe Sen. Lindsey Graham and Sen. John McCain also proposed a 100,000 man “regional army to go into Syria.” Of this force, the United States would provide perhaps 10,000. Alas, waiting for Saudi Arabia, Turkey, Egypt, and other Sunni states to contribute the rest would be akin to waiting for the Easter Bunny or Great Pumpkin to appear.

Do the Paris Attacks Authorize President Obama to Wage War under NATO’s Article 5?

At the Washington Post online, Ilya Somin claimed that the Paris attacks gave “the Obama administration an opportunity to legalize its previously unconstitutional war against ISIS.” He continues, though invoking Article 5 may not appeal to the Obama administration it “is nonetheless the only sound legal justification for continuing the war against ISIS, unless and until the president gets a new authorization from Congress.”

International legal scholar Julian Ku disagreed, noting “Article 9 of the North Atlantic Treaty states that ‘[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.’ (emphasis added).”

In response to Ku, Somin wrote: “in the event of an enemy attack on the US itself, the president has the legal authority to use force of his own volition, without additional congressional authorization.” And Article 5 “gives him the same authority to use force as he would have in the event of an attack on the United States itself.” Indeed, Somin enthused that “Empowering the president to assist an ally under attack without having to seek congressional authorization…makes the US commitment to defend its European allies more credible and certain.”

I am struck by Somin’s enthusiasm for allowing Barack Obama to circumvent the Congress’s war-making authority, and take the United States to war in Syria on account of attacks in France.

This is the same Barack Obama, mind you, who a number of scholars have criticized for exceeding his Constitutional authority. It seems particularly odd, given the importance that the Founders invested in the principle of legislative supremacy over the executive with respect to the war powers – Madison famously said that it was the most important passage of the entire document – that anyone, but especially advocates of limited, constitutional government, would be quick to make an exception in this case.

Will these advocates of greater executive power be now similarly inclined to allow the president to usurp a number of the other legislative powers enumerated in the Constitution? Should Obama be allowed to levy taxes and fees? Or initiate massive new domestic spending programs, independent of the Congress? Say, to implement a health care plan?

That is doubtful. What we are seeing, instead, is a manifestation of the fear-driven politics of the post-9/11 era, which has created a worrisome double-standard: presidents supposedly have nearly unlimited authority to send Americans abroad to be killed or maimed, but they are severely constrained when acting here at home. This attitude is perhaps best exemplified by Bush-era lawyer John Yoo’s claim that, in light of the supposedly uniquely dangerous threats confronting us today, “we should not…adopt a warmaking process that contains a built-in presumption against the use of force abroad.”

Actually, we should. The supposed dangers are precisely that: we do not live in a uniquely dangerous world. Americans today, in particular, enjoy a measure of safety that our ancestors would envy, and that our contemporaries do envy. Given this state of affairs, we should be extremely reluctant to intervene in others’ disputes when our vital interests are not directly threatened. And we should never forget that efforts to create a strong executive abroad will inevitably lead to a strong one at home.

The United States should maintain military power capable of deterring attacks against the United States, and fighting and winning wars when deterrence fails. That military will also be large enough to assist other nations in need, but the authority to deploy forces in that way should never be pre-delegated to circumvent the Congress – and, by extension, the people – of the United States.

More Mission Creep in an Illegal War

In the 15 months since the president unilaterally launched our latest war in the Middle East, he’s repeatedly pledged that he wouldn’t put U.S. “boots on the ground” in Syria. As he told congressional leaders on September 3, 2014, “the military plan that has been developed” is limited, and doesn’t require ground forces. 

Alas, if you liked that plan, you can’t keep it. Earlier today, the Obama administration announced the deployment of U.S. Special Forces to Northern Syria to assist Kurdish troops in the fight against ISIS. U.S. forces will number “fewer than 50,” in an “advise and assist” capacity; they “do not have a combat mission,” according to White House press secretary Josh Earnest. Granted, when “advise and assist” missions look like this, it can be hard for us civilians to tell the difference.  

Asked about the legal authorization for the deployment, Earnest insisted“Congress in 2001 did give the executive branch the authority to take this action. There’s no debating that.”

It’s true that there hasn’t been anything resembling a genuine congressional debate over America’s war against ISIS. But the administration’s legal claim is eminently debatable. It’s based on the 2001 authorization for the use of military force, or AUMF, the Congress passed three days after 9/11, targeting those who “planned, authorized, [or] committed” the attacks (Al Qaeda) and those who “aided” or “harbored” them (the Taliban).

Obama’s ISIS AUMF: Codifying “Mission Creep”

Today, six months after President Obama unilaterally launched our latest war in Iraq, five months after he expanded the war to Syria, four months after his administration thought up a name for the war, and three months after he promised to go to Congress for authorization, the president sent congressional leaders a draft “Authorization for the Use of Military Force against the Islamic State of Iraq and the Levant”—along with a message insisting that “existing statutes provide me with the authority I need” to wage war anyway.

Better late than never? Maybe not: as I explain in my “Reclaiming the War Power” chapter in Cato’s new monograph “Policy Priorities for the 114th Congress,” retroactive authorization might be worth it as part of a package deal that sunsets the 2001 AUMF and imposes new barriers to “mission creep” in the war against ISIS. The Obama AUMF does neither.

As drafted, the president’s ISIS AUMF:

1. Does not impose geographic restrictions on the use of military forces (…thus a war that began with the placeholder Pentagon designation “Operations in Iraq and Syria” could easily expand beyond its current two-country theater);

2. Does not include firm limitations on ground combat operations (…unless you think barring “enduring offensive ground combat operations” is a workable and enduring limitation);

3. Does not preclude the war’s expansion to “associates of associates” of ISIS (… in fact, the Obama AUMF’s “associated forces” provision contains a broader delegation than did the 2001 AUMF, which doesn’t contain any such provision…);

4. Does not sunset the 2001 AUMF; and

5. Does not clarify application of the 2001 AUMF to the ISIS fight (…which risks leaving any limits it imposes susceptible to evasion by a president invoking the earlier resolution).

What little congressional debate we’ve seen so far on the president’s new war hardly smacks of “Profiles in Courage.” Still, the draft AUMF approved by the lame-duck Senate Foreign Relations Committee last December, flawed as it was, made for a far better starting point. It imposed a three-year sunset on the 2001 AUMF, applied new transparency requirements, and at least tried to provide limits on ground combat beyond a few flexible adjectives. If Congress is going to retroactively authorize the president’s latest war, they ought to reclaim some of the control they’ve ceded, not blithely delegate still more power. As I argue in greater detail here, “the 114th Congress should pick up where the SFRC left off, and impose additional limits on presidential authority.” Adopting the Obama AUMF as-is would amount to signing another blank check.