Fog of War, Fog of Law

      When a reporter shouted a question to President Obama last week about the legal justification for the U.S.-led air strikes against the Islamic State in Syria, Obama waved the question away. “Good to see you,” Obama replied smilingly.
      Obama violated no constitutional provision by dodging the reporter’s question, but between them Obama and Congress have disrespected the Constitution with the president’s launch of a new war in the Middle East without formal debate or resolution from Capitol Hill.
      The president deserves credit for laying out his position in a prime-time televised address on Sept. 10 in advance of the start of the air strikes the next day. But the administration’s legal rationale has been scatter-shot rather than precision-targeted.
      In his speech, Obama blandly declared, “I have the authority to address the threat from ISIL” — to use the White House’s acronym for the group. He cited nothing specific and then, without taking a breath, continued by saying that the country is “strongest . . . when the President and Congress work together.”
      Yet Obama has not asked Congress to sign on the dotted line, as the Constitution arguably requires. And congressional leaders have not put aside the midterm election campaigns to return to Washington simply to debate going to war.
      Obama was all over the map in his listing of the United States’ goals in the Sept. 10 address. The mission was described variously as helping Iraq defend itself, strengthening the opposition within Syria to the discredited president Bashar Assad, and combating “terrorists who threaten our country.” Never mind that any number of terrorism experts have played down any direct threat from the Islamic State to the U.S. homeland.
      On background, administration officials told reporters that the White House was relying in part on two congressional enactments: the post-9/11 Authorization for the Use of Military Force — commonly referred to by the acronym AUMF — and the late 2002 resolution on the Iraq War. Jack Goldsmith, the Harvard law professor who served as director of the Justice Department’s Office of Legal Counsel in President George W. Bush’s second term, dismissed the AUMF argument as “unconvincing.”
      Congress passed the AUMF to give Bush legal authority to take military action against “those nations, organizations, or persons” that “authorized, committed, or aided” the Sept. 11 attacks or “harbored” those that did. The Islamic State, which once operated under the name al Qaeda in Syria and Iraq, has only the faintest if any connection to Sept. 11 and has since parted ways from “core” al Qaeda.
      In a quickie column written the next day for Time, Goldsmith said that the invocation of the AUMF amounted to a claim for authority to “use force endlessly against practically any ambitious jihadist terrorist group” that fights the United States. The argument, he wrote, was “presidential unilateralism masquerading as implausible statutory interpretation.”
      With more time, Goldsmith is now giving the administration’s other arguments more credence. In a post on the conservative-leaning web site LawFare  [Sept. 23], Goldsmith wrote that the administration “is on pretty strong legal ground under both domestic and international law.” He still views the AUMF rationale as “weak,” but sees “adequate legal foundation” when the AUMF is combined with the Iraq War resolution and the president’s Article II power as commander in chief. Even so, Goldsmith adds, “[I]t would have been politically wise and constitutionally prudent for [Obama] to force Congress to vote on and authorize this dramatic expansion of the war on terrorism.’”
      Obama has his reasons for not calling Congress back into session. When he asked Congress in 2012 for authority to use military force against Syria to eliminate the country’s arsenal of chemical weapons, lawmakers balked. Obama withdrew the request and retreated to what proved to be a successful diplomatic solution. “The president doesn’t want to get burned again,” Charles (Cully) Stimson, a Heritage Foundation fellow and former assistant secretary of defense for detainee affairs in the Bush administration, remarked on C-SPAN’s Washington Journal last week [Sept. 25].
      Congress itself has other things on its mind, such as running for re-election and ducking responsibility for a war that may or may not go well. Admittedly, House Speaker John Boehner professes a desire for Congress to address the issue. “I have made it clear that I think the House and the Congress itself should speak,” the Republican speaker said last week in an interview with the liberal web site First Draft.
      Boehner is blaming Obama, however, for Congress’s failure to act. Speaking on ABC’s This Week [Sept. 28], he said Congress was waiting for Obama to send up a War Powers Act resolution for lawmakers to consider.
      Alphonse and Gaston made for a good comic strip back in the day, but they are a poor model for a constitutional republic. “This is not an ideal situation,” American University constitutional law professor Stephen Vladeck, founding editor of the liberal-leaning site JustSecurity, remarked on the C-SPAN program.
      Between them, Obama and Congress owe the nation and the world the deliberation due for a new U.S.-led war. For all the talk of presidential unilateralism a decade ago, Bush twice asked Congress for authority before putting U.S. service members in harm’s way. The constitutional law professor now serving in the White House should do at least as much.