The President’s Bullshit Legal Basis For War

Refugees Fleeing ISIS Offensive Pour Into Kurdistan

Eli Lake passes it along:

One Obama administration official said the argument that the new war is legal under the 2001 AUMF stems from the fact that ISIS began as a franchise of al Qaeda. Initially ISIS was known as al Qaeda in Iraq and at one point its leader, Abu-Bakr al-Baghdadi, pledged allegiance to al Qaeda in what’s known as an oath of Bayat.

But that argument would essentially ignore the fact that Baghdadi today has publicly broken with al Qaeda and declared himself the Caliph of the Muslim world.

Elias Groll hears a version of the same argument:

According to the senior administration official, that split does not matter for the purposes of targeting the Islamic State under the AUMF because of its “longstanding relationship with al Qaeda and Osama bin Laden” and “its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests.” In addition, the official said, there is “extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004.” ISIL is an alternate name for the group.

Describing the group as “supported by some individual members and factions” of groups aligned with al Qaeda, the official described the Islamic State as “the true inheritor of Osama bin Laden’s legacy.”

Robert Chesney, who is “cautiously supportive” of the Obama’s ISIS policy, rejects this legal rationale:

Until this evening the big AUMF interpretive boundary seemed to be the notion that it extended only to AQ’s associated forces actually engaged in hostilities against the United States (though the recent al Shabaab strike perhaps shows this line was not so important after all?). Now we are speaking not just of “associated forces,” but also “disassociated forces” that might, from a certain point of view, be seen as “successor forces.” Will we later hear of the AUMF applying to associated forces of this successor force? It is not hard to imagine many of them popping up the Iraqi-Syrian theater.

Benjamin Wittes is also throughly unimpressed by the administration’s logic:

This is not a stable or sustainable reading of the law, absent some dramatic, non-public intelligence about the ISIS-Al Qaeda relationship. Remember that this is a law that barely a year ago, President Obama was lecturing us needed to be narrowed and repealed. “This war like all wars must end,” he piously intoned. Apparently not, however, before we dramatically expand its interpretive scope and deploy it to support a new and open-ended military campaign that, in the president’s own words, “will take time.” All to avoid asking the girl, who might say no, to dance.

Jack Goldsmith joins the chorus:

The largest irony here is that President Obama has long hoped to leave a legacy of repealing the Bush-era authorization and declaring the “war” against al Qaeda over. “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal” the 2001 law’s mandate” he said in a speech last May at the National Defense University. “I will not sign laws designed to expand this mandate further,” he added, before insisting that “history” and “democracy” demand that “this war, like all wars, must end.”

President Obama never did engage Congress to refine the 2001 law. The violent reality of the Islamic State has quickly belied the supposed demands of history and democracy. And the President, all by himself, has now dramatically expanded the 2001 mandate.

Ilya Somin counters those who contend that this isn’t a war:

Some defenders of the administration, such as legal scholar Peter Spiro, argue that the campaign against ISIS does not need congressional authorization because it is not a “real war,” primarily because the president assures us it will be limited to air strikes and probably won’t involve a risk of significant US casualties. The president himself said tonight that the campaign against ISIS “will not involve American combat troops fighting on foreign soil.” Such arguments are difficult to credit. Air attacks are among the most important instruments of modern warfare, and Air Force and Navy pilots surely qualify as combat troops; and it’s hard to see a meaningful distinction between “fighting on foreign soil” and bombing foreign soil. Repeated air strikes intended to – as the President put it – “degrade, and ultimately destroy” a potent enemy force that controls a great deal of territory, qualify as war by any reasonable definition. Claims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age. You don’t have to be a constitutional law professor, like the president, to see that.

Steve Vladeck doesn’t want to lose sight of the forest for the trees:

[A]ll of this focus on the legal rationales for military force shouldn’t obfuscate or excuse our continuing lack of understanding of the threshold questions: What, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense? We heard a little bit on this front in the President’s speech last night–but, at least in my view, not nearly enough. And so for all the oxygen that will be consumed in the coming days and weeks over the meaning and scope of the 2001 AUMF, we shouldn’t let that drown out these critical (and necessarily antecedent) questions.

And Yishai Schwartz spells out the trouble with the administration claiming that “it is the ideology that matters, not the organization”:

The problem with the President’s legal theory is not just that it guts congressional war powers, but that it also seriously hampers our ability to achieve any kind of victory. Ideologies are notoriously difficult to stamp out. They evolve and spread and can go underground. States cannot. And while the Islamic State is most definitely a terrorist group, it is also a state. It has territory under its control and centralized bureaucracyall of which makes it more easily destroyed. As they draft and interpret their resolution, Congress, and the president, ought to remember that.

(Photo: By Spencer Platt/Getty Images)