Americans concerned with our U.S. presidents’ ability to unilaterally wage war have to be shaking their heads. President Obama has authorized war in Iraq and Libya, not only to defend Kurdish civilians besieged in the Iraqi mountains but also against forces in Syrian territories. Attempting to curb this new escalation seems utterly futile.
I take the view that the U.S. forfeited our moral authority to wage war in Iraq after our previous conduct there. Bush perpetrated an opportunistic and devastating military misadventure which ran roughshod over our own constitution and over the rights and safety of Iraqis, as well.
To many Iraqis subject to our bombs and airstrikes, we must seem scarcely less pernicious or dangerous than the violence from any insurgent group attacking them. I’ll allow that our nation’s violenc there under President Obama is likely less devastating to the general population than Bush’s violent attacks; we are now less deliberately barbarous than the current combatant insurgents featured in his justifications for his latest military strikes against ISIS. However, in their counterproductive nature — fostering and fueling even more resistant violence in response — I believe that’s a matter of degree, but not effect; its also of little comfort to the residents of these sovereign nations caught in the way of our bombs and missiles.
I’ve been mulling over ways in which someone in America who shares my concern would be able to — collectively, of course, in our legislative system — prevent the President from launching the types of limited airstrikes that he’s outlined in Iraq and elsewhere. I’ve concluded that it’s almost impossible.
The authority the President, as commander-in-chief has in his reach to wage limited war (which, by most definitions would cover airstrikes) is effectively unchecked. Even if Congress specifically prohibited a president from initiating such attacks, a president could defend his actions with authorization gleaned from several different authorities.
First, observe that whatever authority President Obama is considering in his re-deployment of troops into Iraq; more importantly, his order for airstrikes to defend American positions and personnel in Baghdad, Irbil, and in defense of the besieged Kurdish civilians, was an amorphous and shifting affair.
The initial deployment of troops could be justified, as he did earlier in the summer, as protection of embassy personnel. It gets trickier when defining the goal of military ‘advisers’ and their support troops, but President Obama has justified that action is authorized under a broad and certainly expansive reading of the 2001/9-11 AUMF against al-Qaida; or under the nebulous and autocratic declaration of our ‘national security interest’ which can be either a short term concern or a long-term one which is speculative and subjective to whatever view there is of a future threat.
Conor Friedersdorf argues in the Atlantic that Barack Obama has “dramatically expanded” the notion of when presidents can use force without permission. He cites three precedents:
First, Obama’s reliance on Article 2 in airstrikes against Libya and Syria to claim it empowers the president to take unilateral action to “protect regional stability” & “enforce international norms.”
Second, Pres. Obama’s claim as he waged war past the two-month period contained in the War Powers Act- beyond which, congressional authorization is required — that ‘limited’ airstrikes don’t count as ‘hostilities’ under the provisions of the under-utilized legislation.
Third, Obama’s assertion that the 2001 AUMF against al-Qaida gives him authority to wage war against tangentially related combatants, like those who comprise the leadership of ISIS who have long ago renounced allegiance to, or affiliation with al-Qaida.
There isn’t any argument that the President has the ability and need to protect and defend American military and civilian personnel he’s inserted into Iraq. There’s certainly room to argue that defense of troops deployed is a self-serving, self-perpetuating rationale, but there’s little doubt that he has that authority.
It gets a bit more complicated when considering the actions of military advisers who he’s ordered to help Iraqi forces direct attacks against whoever they deem a threat to Iraqi or U.S. interests in the country. The authority for that military deployment and activity are being conjured from a number of Bush-era authorizations to war in Iraq, and elsewhere, which haven’t expired or been voted out of existence by Congress. Most notably, Bush’s 2001 AUMF is still in effect. Or, justification of that authority could be drawn from the nebulous ‘national security’ concerns described above. At any rate, President Obama really hasn’t settled on any one tenet of that authority for Americans, or our legislature to measure or approve.
From June 12 Roll Call:
When asked about getting Congress’s permission (to take initial action in Iraq), WH spokesman Carney was noncommittal.
“We are in active consultation with members of Congress,” he said.
He demurred when asked directly about the 2002 authorization to use military force (AUMF). An administration spokeswoman, Caitlin Hayden, told Yahoo’s Olivier Knox in January “the administration supports the repeal of the Iraq AUMF.”
Hayden emailed CQ Roll Call late Thursday and to reiterate that what she said then remains in effect.
She declined to comment on what authority Obama would have to act if he decided to launch a strike.
Roll Call again, June 18:
Pres. Obama met for about an hour in the Oval Office with McConnell, Speaker John A. Boehner, R-Ohio, House Minority Leader Nancy Pelosi, D-Calif., and Senate Majority Leader Harry Reid, D-Nev.
Pelosi told reporters that she agreed that the president has all of the authorities that he needs in the authorizations to use military force passed by Congress previously.
“All of the authorities are there. That doesn’t mean I want all of them to be used, especially boots on the ground,” she said. “But I definitely think the president has all of the authority he needs by dint of legislation that was passed in 2001 and 2003.”
She appeared to be referring to the authorizations to use military force passed after the Sept. 11, 2001 attacks and the 2002 authorization to use force in Iraq. Neither of those authorizations have expired, although the official White House position is that the Iraq authorization should be repealed.
It’s a bit slippery for the president to give lip service to the idea of repealing an authorization to war that he may well be advantaging authority from in Iraq. He actually has as much authority to wage war as Congress allows. Still, even though a formal declaration hasn’t been made, the administration does appear to be leaning to the CIC defense of their authority to launch strikes.
As to the domestic legal basis, we believe the President has the authority under the Constitution as Commander-in-Chief to direct these actions, which are consistent with this responsibility to protect U.S. citizens and to further U.S. national security and foreign policy interests. Specifically, the protection of U.S. personnel and facilities is among his highest responsibilities as Commander-in-Chief, and given the threats that we see on the periphery of Erbil, he has authorized the use of targeted military action.
Similarly, we believe that there is an urgent humanitarian challenge that further poses a threat to U.S. interests. As I said this rises to the level of a potential act of genocide when you have an entire group of people being targeted for killing, and you have a population of the size that is on Mount Sinjar that is threatened with starvation as one option, or, as the President said, coming down that mountain and potentially being massacred by ISIL.
If we do end up taking airstrikes, we would have to do a War Powers report consistent with how we respond when the United States is engaged in hostilities. So we have been consulting Congress for the last several weeks about Iraq, generally. And then throughout the day today we were able to reach a good number of members and leaders of Congress to advise them of our thinking and then of the President’s decision. And again, if there are airstrikes taken, we will comply with our responsibility to file a War Powers report.
In the case of limited war, or limited airstrikes as President Obama has ordered in Iraq, his ability to claim authority, as Commander-in-Chief, appears unlimited. If he relies on the Bush-era authorizations already in place — the one specific to Iraq, and others related to the broader ‘war on terror’ — in a legal sense, his actions never need be scrutinized by Congress for approval or disapproval, until they decide to repeal them.
If he relies on his constitutional powers as commander-in-chief — albeit under the War Powers Resolution enacted by Congress in 1973 and intended as a limiter on a president’s ability to wage war without Congress’ approval; passed in response to Nixon’s secret bombing of Cambodia — he has historically demonstrated broad powers to wage limited airstrikes without any weighing in from Congress at all.
Under the WPR, under Article Two of that act, “in the absence of a declaration of war, the president must report to Congress within 48 hours of introducing armed forces into such circumstances and must terminate the use of U.S. armed forces within 60 days unless Congress permits otherwise.”
That provides more than enough opportunity for a president to launch the types of airstrikes President Obama has ordered in Iraq without relying on any of the Bush-era documents, with virtual impunity.
I’m obviously dismayed that there doesn’t seem to be a lever for the public, or for our elected representatives and senators, to automatically or quickly restrain any president from warring on a limited basis. I’m certainly dismayed over our ability to legally or legislatively restrain President Obama from waging limited war, or otherwise, in Iraq.
That’s the way it goes. Notwithstanding a major uprising by Americans in opposition, it’s highly unlikely that there’s anything that can or will be done to actually cause President Obama to limit his military ambitions.
I believe that, no matter what one’s view of his actions are there, it should be a concern just how easily a president is able to wield the devastating force of our military abroad. So much for trying to figure a way out of this mess.
Why do we allow the President of the United States to make war based off of a stale, open-ended AUMF? Bush’s AUMF, at that … the one we opposed with marches and protests!
In the wake of the republican takeover of the Senate, reports say President Obama intends to double the U.S. military force in Iraq. That autocratic and reflexively Bushian surge of force is just the latest installment in our present creep toward irreversible perpetual war.
Anyone worried about Obama’s ability to unilaterally wage war should also remember that every successive president will hold the same open-ended authority. That way lies our future.
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