Our New War Against ISIS: Should Congress Ask for a Declaration of War?

In his Wednesday evening speech to the nation, President Barack Obama told Americans that he would consult with Congress about his new strategic plans to “degrade and destroy” ISIS, or the Islamic State of Iraq and Syria. He did not say, however, that he would go to Congress and ask them for a declaration of war. The Constitution, which he is pledged to uphold and defend, gives the right to declare war to the people’s representatives in Congress, not to the commander-in-chief.

Yet the question must be raised, and undoubtedly will be by more than a few members of Congress: Does Obama have the untrammeled right to declare war without their consent? Last week, former Senator Joseph Lieberman argued in the Wall Street Journal that he in fact can do so. The tension between the two branches of government, Lieberman argued, has always been “resolved in favor of presidential authority.” Congress can declare war, the senator says, but the president has “the inherent power to make war.”

The problem, however, is a serious one for Barack Obama, particularly because when he was in the Senate, he and other Democrats argued that the Bush intervention in Iraq was illegal and immoral and should quickly be brought to an end. We all remember the chant, “No Blood for Oil.” When Bush changed course and announced the surge, Obama unsuccessfully introduced the “Iraq War De-Escalation Act of 2007” in the Senate, seeking to deny the additional troops that Bush had requested and demanding that American troops be redeployed from Iraq by 2008.  Under Obama’s bill, Congress would have held oversight over the president, who would have to report to them every 90 days. In a statement at the time, Obama argued that “no amount of American soldiers can solve the political differences at the heart of somebody else’s civil war.”

Senator and presidential candidate Barack Obama also told the Boston Globe the following in a 2007 interview:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. . . . In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

Obama won the White House promising to extract Americans from other nations’ civil wars. Last May, he said in a speech at the National Defense University, “I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal” the 2001 law’s mandate that Congress passed to give the Bush administration the power to go into Iraq. He added, “I will not sign laws designed to expand this mandate further,” before insisting that “history” and “democracy” demand that “this war, like all wars, must end.”

How times have changed. Now Obama finds himself in the position of asking the American people to do just the opposite, by way of an extended “counter-terrorism operation” — as John Kerry called Obama’s war plans — without formal congressional approval or action. As Howie Carr asks so mockingly: “Whatever happened to Cindy Sheehan? Where is Code Pink? I haven’t seen an ‘Endless War’ bumper sticker in years, since 2009 to be exact.”

Obama’s spokesmen claim that the authority Congress gave George W. Bush in 2001 to move militarily against any country or force responsible for the 9/11 attacks is applicable to the present situation. As press secretary Josh Earnest argued, the president believes that the Authorization for Use of Military Force (AUMF) “continues to apply to this terrorist organization that is operating in Iraq and Syria.”

There is more than one problem with this analogy. Al-Qaeda attacked the United States directly, and America’s military reaction was a response to that specific act of war. ISIS has taken possession of an area surrounding Iraq and Syria larger than the state of Maryland, and has now some 30,000 troops on the march and ready for further battles. They also have American weaponry, a disciplined armed force, and a (short) record of functioning as an actual state in the territory they now possess. But they have not, as yet, attacked the United States itself. So by Obama’s own previous statement, fighting ISIS is not at present a response to an imminent danger or a matter of self-defense.

Writing in Time, Jack Goldsmith, a chief legal counsel to George W. Bush and one of those lawyers who helped develop the legal framework for that intervention, now argues that Obama’s invocation of the past Bush-era legal framework is not valid:

The problem with this approach is that its premise is unconvincing. The 2001 law authorized force against al Qaeda and its associates. The Islamic State once had associations with al Qaeda, but earlier this year al Qaeda expelled it and broke off ties. The administration nonetheless insists that the 2001 law applies to its new military action, primarily because the Islamic State claims to be “the true inheritor of Osama bin Laden’s legacy” and is supported by “some individual members and factions of [al-Qaeda]-aligned groups.” But if this remarkably loose affiliation with al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States. The President’s gambit is, at bottom, presidential unilateralism. . . .

Goldsmith argued today at his Lawfare blog that the claim made by John Kerry that “war is the wrong terminology” for what the U.S. is doing also is false:

[The claim] is belied by the Obama administration’s legal theory. The Obama administration has long maintained that under the AUMF the United States is in an “armed conflict” with al Qaeda and associates. The new legal theory is that the Islamic State either is al Qaeda or is (or used to be) associated with al Qaeda within the meaning of the AUMF. Thus the administration’s legal theory is that the United States is or in the near future will be in an armed conflict with the Islamic State. And “armed conflict” is the modern term for war.

And if it is war — and when a nation bombs another ostensibly sovereign nation like Syria, the U.S. is waging war, not a counter-terrorism operation — then sooner or later, public support might erode for what could be a series of escalating steps that could lead to the proverbial “boots on the ground.” Should that happen, Congress will then demand that the president go to Congress, and as FDR did after Pearl Harbor, ask it to pass an actual declaration of war. Or not.