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The Illegal War Against ISIS

The president doesn't have the authority that he pretends to have.
Barack Obama Address to the Nation
10 September 2014 - Washington, D.C. - US President Barack delivers a prime time address from the Cross Hall of the White House on September 10, 2014 in Washington, DC. Vowing to target the Islamic State with air strikes "wherever they exist", Obama pledged to lead a broad coalition to fight ISIS and work with "partner forces" on the ground in Syria and Iraq. Photo Credit: Saul Loeb/CNP/AdMedia (Newscom TagID: admphotostwo072033.jpg) [Photo via Newscom]

Obama’s ISIS speech last night was underwhelming, but then there was almost nothing in it that hadn’t been expected. He barely mentioned any legal justification for the campaign that he was announcing, saying only that “I have the authority” to do it. Perhaps Obama didn’t want to say more than this, because the administration is reportedly relying on the 2001 AUMF for this so-called authority, which no one else thinks applies to ISIS:

Obama’s using the law that authorized attacks against al Qaeda to justify his new fight in Syria and Iraq. One small problem: ISIS and al Qaeda are at each others’ throats. Legal experts were shocked to learn Wednesday that the Obama administration wants to rely on that 2001 Authorization for Use of Military Force against al Qaeda for the new ISIS war.

“On its face this is an implausible argument because the 2001 AUMF requires a nexus to al Qaeda or associated forces of al Qaeda fighting the United States,” said Robert Chesney, a professor at the University of Texas School of Law. “Since ISIS broke up with al Qaeda it’s hard to make that argument.”

The 2001 AUMF clearly doesn’t apply here, so the president doesn’t have the authority that he pretends to have. This is similar to the administration’s claim back in 2011 that U.S. forces weren’t engaged in “hostilities” and therefore Congressional authorization of the ongoing war in Libya wasn’t required. Since they can’t pretend that U.S. forces aren’t fighting a war this time, they have looked around for a fig leaf and chosen one of the weakest legal arguments they could find. They have staked out another flimsy, absurd position, and because they got away with it three years ago they probably assume they can do the same thing again.

It is a little strange that Obama wouldn’t ask for a new authorization specifically for attacking ISIS, since Congress and the public would appear to be behind the war at the moment. It seems unlikely that there would be a repeat of the Syria debate in Congress. If pressed to vote on this war, both houses would likely vote yes in large numbers. However, we already know that many Democrats in Congress don’t want to have to vote on this ahead of the midterms, and there are just as many Republicans that are happy to let the president start a war that they don’t have to vote on. That way all of the members can avoid taking a hard and potentially unpopular vote, and they can collectively avoid any responsibility for the war. They will probably be grateful that they can avoid voting on this war, since it seems likely to be an open-ended conflict and its goal of “destroying ISIS” still seems just as unrealistic as it was before the speech.



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