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Yes, Obama Has the Legal Authority to Take on ISIS
President Obama’s “strategy” for fighting ISIS — announced in his speech last night — is coming under fire from conservatives for lacking legal authority. I worry that they are allowing their short-term political opposition to Obama and his foreign policy to overcome the longer-term interest in preserving the powers of the Presidency. On the other hand, President Obama could easily get congressional approval, but he is squandering the executive’s powers so he can pursue a half-hearted, lower-intensity, regulatory approach to the tough business of war.
Good legal authority is no guarantee for good policy. Just because the speed limit is 65 mph. doesn’t mean everyone should drive 65 all the time, no matter the conditions. Personally, I find President Obama’s speech last night to have lacked any overall strategic vision. His policies — air strikes, coalition military support, and aid — are tactics designed to contain ISIS, but are not a strategy on how to defeat ISIS and pacify the region.
That said, President Obama has a few legal grounds for attacks on ISIS.
1. Under Article II, section 2 of the Constitution, the President is Commander-in-Chief of the Armed Forces. He is also vested with all of the executive power of the federal government. This has long been understood to allow the President to initiate military hostilities to protect the national security of the United States. Almost no one questions whether the President can respond to sudden attacks on the United States, and most agree that this includes strikes that anticipate an attack (such as if we had struck the Japanese fleet on its way to Pearl Harbor). This power should also allow the President to attack countries and terrorist groups to prevent them from harming the U.S., even if an attack is not imminent.
I make the case for this in my most recent book, Point of Attack: Preventive War, International Law, and Global Welfare, but if you don’t believe me, believe Congress. In its 2001 Authorization to Use Military Force, Congress declared: “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
Even Congress recognized the President’s traditional authority to use force to prevent future attacks on the United States — and there seems to be no doubt that ISIS seeks to carry them out. My former Justice Department colleague, Robert Delahunty, and I wrote a law review article after the 9-11 attacks laying out the history, here.
2. The 2001 Authorization to Use Military Force, passed overwhelmingly by Congress one week after the 9-11 attacks, states:
the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The 2001 AUMF would apply if ISIS is linked to al Qaeda or other groups/nations/organizations/persons involved with the 9-11 attacks. At one point, it appears, the head of ISIS took an oath of allegiance to al Qaeda, but reports now claim that ISIS has broken with the terrorist group. Because the AUMF’s application depends on this crucial fact, the Obama administration — if it seeks to rely on the authorization — should present evidence to Congress and the American people proving the link.
3. Even if the 2001 AUMF did not apply, the Authorization to Use Military Force in Iraq, passed by Congress in October 2002, provides more direct legal support. It states:
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
Despite the fact that the Obama administration was seeking the AUMF’s repeal last spring (another sign of how it erred in judging the ISIS threat), this law authorizes U.S. military involvement in Iraq. Notice that it does not state that the authority is limited to overthrowing Saddam Hussein. It gives authority to the President to prevent national security threats emanating from Iraq. Here, ISIS is developing a terrorist state with control over the middle swath of Iraq, from which U.S. military and intelligence analysts believe ISIS will carry out attacks on the U.S. and its allies.
Furthermore, the relevant U.N. Security Council resolutions committed the U.S. to the reconstruction of Iraq, its territorial integrity, and political independence, and authorized states to prevent Iraq from threatening the region’s peace and stability. While President Obama may wish that mission were completed, ISIS’s rise shows clearly that it is not. Airstrikes on ISIS and military aid to friendly Iraqi forces fall within the text of the AUMF. Interested parties can find a discussion of the U.N. resolutions in a short piece of mine in the American Journal of International Law here.
Despite our misgivings about President Obama’s policies, he has the legal authority to carry them out. Liberals, it should be emphasized — who were screaming for President Bush’s impeachment for his allegedly illegal policies as Commander-in-Chief — are remaining silent. They were similarly quiet during President Clinton’s attack on Serbia in 1999-2000. A generous person would hope that members of the Left have finally learned their lesson on war powers, but after watching them twist and turn on the Constitution ever since the Vietnam War, we can expect them to challenge wars only if they are conducted by Republicans.
Conservatives in Congress could respond not only by voting to authorize hostilities against ISIS (whether in Iraq or Syria) but voting for a large defense spending increase well beyond that necessary for the intervention. They can show that they understand ISIS is only a symptom of a greater American retreat around the world. While they cannot force the Commander-in-Chief to use the army, navy, and air force with determination and leadership, they can prepare the groundwork for a renewed American presence in the world under the next President.
[Cross-Posted at The Corner]
Published in General
Let’s stipulate that this is correct. Would there be any disadvantage to seeking a new AUMF that specifically addressed ISIS?
At this point, does it really matter whether Obama’s actions are Constitutional or not? He will do what he wants and there is no authority to hold him accountable.
It is time for conservatives to face facts: We are in post-Constitutional America. Parsing the President’s actions through a legal prism isn’t really relevant anymore.
Bad news for law professors I suppose, but you’ll probably still get a paycheck, which isn’t all that bad these days.
I don’t know if it’s so much a matter of whether he has legal authority as it is that it’s President Obama who is exercising his authority. That’s a bit like handing recreational drugs to an addict.
I think Billy is correct in assessing Obama’s fealty to the Constitution. I do want to address the AUMF-Iraq that you claim is legal justification for attacking ISIS. This resolution actually does NOT give the President to authorize military strikes without Congressional approval because the AUMF-Iraq of 2002 is SPECIFIC to the Saddam Hussein regime in Iraq, which has long since been defeated and overthrown. There is now a new government in Iraq–of our design–and the threat of ISIS is actually not a result of the Hussein regime having been toppled. The only areas where you might be able to stretch out a justification for force now are in the last three points of the 2002 resolution pertaining to “deter[ing] and prevent[ing] acts of international terrorism.” Now I am not a lawyer, but I would argue that those three articles of the resolution are in the context of whole which is aimed at the Hussein regime, and therefore, would necessitate the need for a new resolution.
https://beta.congress.gov/bill/107th-congress/house-joint-resolution/114/text
PS: The hyperlink feature was not working for me. Please QUIT changing Ricochet for the worse. You guys are worse than the government when it comes to “updating” things into not working.
As usual I think the prof reads things much too broadly. I’m for sending these a-holes to hell, however, I’d like to see an OK from congress.
1. I guess it depends on your definition of imminent is. By reading this as some unspecified imminent attack on us at some future unknowable date I suppose means we can go kill all the male children cause at some stage nits make lice…. Excuse a little hyperbole here to illustrate the point IMO that this is read too broadly and congress needs to weigh in. And, then the Prof says all this applies even if an attack is not imminent. I don’t think even he really believes that.
2. Maybe – I don’t know. Did ISIS exists in 2001? Did it help Al Qaeda with 9-11? Maybe they are harboring Al Qaeda. I don’t think an org that came into existence after 9-11 is covered by that language – it’s pretty specific.
3. We’re actually defending Iraq. The threat is not posed by Iraq, the state of, but by non-state actors sometimes within the geographical boundaries of Iraq. I don’t think you can read this an anything but the state of. No mention of Syria here at all. Not one.
Congress is required.
I’ve said before that I agree he probably has the legal authority. What he lacks is the moral authority, which is a disgusting position for an American President. He worked very hard to throw away the victory we had won in Iraq, and it was no accident.
Americans voted twice for the horror now unfolding on their television screens. What we need now is a good Ludovico Institute.
We will soon be funneling even more money directly to Al Qaeda, and in plain view as well.
While I appreciate that this is a summary, not a treatise, your statement of the C-in-C’s Article II powers is certainly too broad. The suggestion that the President can initiate armed hostilities against states posing no imminent threat, but which in the President’s judgment pose some threat to US national security, goes well beyond the established law of self-defense and swallows up Congress’s Article I war powers.
The issue of “groups” poses a different issue, especially when they happen to reside in states we are not at war with, but the 2001 AUMF is broad enough to deal with that.
With respect to ISIS, which I assume to be the progeny of al-Qaeda, the 01 and 02 AUMFs are clearly enough to deal with them in the territory of Iraq as well as bases in Syria being used to stage operations in Iraq.
As you correctly point out, it was foolish politics for the Obama Administration to seek repeal of these authorizations. But that’s par for the course with this crew.
I just find it ironic that President Obama now says “This is a core principle of my presidency: If you threaten America, you will find no safe haven.” How is that any different than the Bush Administration policy of “preventative war” that was so mocked and vilified by Democrats a few short years ago?
I’m glad Obama has finally come ’round to the sensible view, but the double standard is staggering.
For the folks who think that Obama should be going to Congress for approval: he tried to get Congress to revoke the authorization to use force, and they didn’t.
http://www.scribd.com/fullscreen/235109249?access_key=key-iGB8BIgK4cxNeXtuFT41&allow_share=true&escape=false&view_mode=scroll
So if you’re unhappy about this one, it’s on Boehner and the Republicans in Congress. Not Obama.
Of course reading that letter demonstrates how clueless the Obama administration was about events in Iraq, but that’s hardly news…
Another John Yoo post that seems to rely less on our Constitution than it does on the MelBrooksian aphorism: It’s good to be King. If only our Founders had written a role in the Constitution for Congress.
Here you can watch WH Spokesman Josh Earnest try to explain how there’s really no irony in Obama relying on the legal authority he called on Congress to repeal.
I think the White House really needs to fire Josh Earnest and hire Nathan Thurm to do these press briefings. Thurm would be much more persuasive. “He wanted to repeal the authority he’s relying on? Really? It’s so funny that you would think that.”
OHB owes his presidency in large part to his opposition to the war in Iraq and his shaming his opponents (looking at you Mrs. Clinton) who voted for authorization of the war. Which would make his using that authorization for his own policies a wonderful thing to proclaim to our nation’s peaceniks.
Well, now, isn’t this interesting (emphasis added):
Since the vaunted Constitutional scholar has already ordered or authorized strikes against ISIS, including reportedly on Syrian territory, it would be nice to know what authority, if any, he did rely on.
Then again, this is the same crowd that was only too happy to declassify Prof. Yoo’s legal analysis of non-lethal waterboarding, while refusing to release their own legal justification for drone strikes killing Americans suspected of al-Qaeda ties in Yemen.