Obama Has 6 Weeks To Make His Assault On ISIS Legal

The longer airstrikes continue, the shakier the president’s legal footing becomes.

Larry Downing / Reuters

On Aug. 7, President Barack Obama walked into the State Dining room at the White House and announced to the world that he had just authorized “two operations” in Iraq. Both targeted the Islamic State in Iraq and Syria (ISIS), the group that has now taken over nearly 35,000 square miles of territory stretching from northern Syria and into Iraq.

The first of the operations Obama authorized that night was a series of “targeted airstrikes” designed to protect American personnel at the U.S. consulate in Irbil, the capital of Iraqi Kurdistan. The second was a “humanitarian effort to help save thousands of Iraqi civilians” stranded in the region. What started narrowly has gradually, and perhaps inevitably, grown into something much more expansive. Something that, at least from the outside, looks a lot like war.

The number of U.S. airstrikes in Iraq have now topped 100, surveillance flights are passing over Syria looking for possible ISIS targets there, and the goals of the entire undertaking seem to have shifted. No longer is the U.S. talking about a few days of strikes to give air cover to a consular outpost, now it is openly discussing eradicating ISIS, which is something altogether different than the limited campaign Obama initially outlined. As the objectives have changed, so too has the rhetoric. On Tuesday, at an event in Charlotte, North Carolina, President Obama told the crowd that “rooting out a cancer like (ISIS) won’t be easy, and it won’t be quick.”

The problem for the president is that the longer these airstrikes go on, the shakier his legal footing becomes. Obama’s initial authorization relied on what is usually termed the president’s Article II powers – a shorthand for article II, section II of the Constitution, which names the president as the commander-in-chief of the U.S. military. But in many ways this is also the weakest and most controversial justification for the use of military force, as it allows the president to make decisions about war and peace on his own, without receiving explicit permission from Congress. Article II is typically used in emergency situations, a sort of self-defense provision that allows the president to protect the country without simultaneously trying to gather support in Congress. But it is a stop-gap, not a solution. Not surprisingly, given how often president’s fall back on Article II, the validity of any claim is in the eye of the beholder. Prior to taking office, Obama often criticized then President George W. Bush for an over-reliance on Article II powers and what many Democrats came to see as the dangers of an unchecked executive. That worry, it seems, is now gone.

Powerful presidents wandering into ill-conceived wars is nothing new. In 1973, as the U.S. was struggling to find its way out of Vietnam, Congress passed the War Powers Resolution, which basically put a 60-day clock on presidential war-making. Either Congress authorizes a military operation within 60 days or the president has to end it. There are no other options, or at least there aren’t supposed to be. In 2011, the Obama administration tried to short-circuit the 60-day timetable by claiming that bombing Libya didn’t constitute “hostilities” and therefore there was no clock. That argument was not well received, and the Obama administration hasn’t brought it out for a second round. This time, the 60-day clock to get Congressional approval is in full effect, and it runs out on October 5. If Obama wants to keep bombing ISIS after that date he has four options, and none of them is good.

2002 Iraq AUMF


On the surface this would seem to be the most obvious route. In 2002, Congress authorized the president to use military force in Iraq and set no expiration date, so the law remains on the books even though U.S. troops withdrew in 2011. The problem, however, is that the authorization targets the Iraq of Saddam Hussein, not a militant group within its borders. Plus, the Obama administration has repeatedly asked Congress to repeal this authorization, including as recently as a few weeks ago.

2001 AUMF


One of the most broadly written and interpreted AUMFs in history, the 60-word text of this law has been used to justify everything from drone strikes and Guantanamo Bay to SEAL raids and secret renditions. At first glance this would look to be a tough fit. This AUMF, written just two days after the September 11 attacks, is widely understood to target both the Taliban and al-Qaeda. ISIS has publicly broken with al-Qaeda, which makes it difficult to label them an “associated force,” the legal maneuver the administration has used to grant itself permission to target other groups such as al-Qaeda in the Arabian Peninsula (AQAP). But according to the Washington Post, the Obama administration is looking for ways to stretch those 60 words just a bit more so they could also apply to ISIS. One possibility is a backdoor interpretation that would claim ISIS is an “associated force” not of al-Qaeda central, which it is opposed to, but rather with AQAP as Ryan Goodman outlined here. Basically, this reading would make ISIS an associate of an associate, even while the group is at odds with the primary target of the AUMF. Convoluted, no doubt, but the administration is increasingly desperate to put its air campaign on firm legal ground and avoid any implications of an illegal war in Iraq.

A New AUMF


Legally, as Jack Goldsmith, a former lawyer in the Bush administration and a professor at Harvard, and others have pointed out, the easiest and soundest course of action is for the president to ask Congress for a new AUMF, which specifically targets ISIS. But this has its own problems — namely that Congress doesn’t appear very eager to take up the issue of a new AUMF. With the exception of a handful of senators and congresspeople, almost no one wants to debate another round of military action in Iraq particularly with mid-term elections only a few months away. As Adam Smith, the senior Democrat on the House Armed Services Committee, told the New York Times on Wednesday he couldn’t see Congress taking this up in “a million years.”

Article II


That leaves the president back where he started, relying on his Article II powers. But his constitutional authorities as commander-in-chief don’t allow him to simply do whatever he wants when it comes to deploying the military. Only Congress can declare war or authorize the use of military force. The 60-day clock is a mechanism of necessity that allows the president to respond immediately in times of national crises or when the security of the nation is at stake. But the longer the strikes continue and the broader the range of targets the less persuasive the argument of national self-defense becomes. As Robert Chesney points out on Lawfare, it is one thing to carry out strikes on ISIS targets around Irbil – where they are threatening U.S. diplomats – and something else entirely to hit them miles away near the Mosul dam. If the U.S. starts going after ISIS in Syria the Article II argument will get even weaker still.

Whatever option he chooses, Obama has 48 days left to make it legal. The clock is ticking.

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