Wednesday, September 24, 2014


I guess I have just gotten used to the fact that the U.S. never follows its own constitution anymore when it goes to war. The Constitution seems pretty clear to me, Congress has the power to declare war, not the President. Every president in my lifetime has ignored that clear language and has sent U.S. forces into conflict without any declaration of Congress.

Actually, I'm not sure why a formal declaration of war has fallen out of favor. It is the only way to initiate hostilities under the Constitution, but the last time Congress passed a formal declaration of war was in the 1940s. Why didn't they do that with the Gulf War or the Iraq War? Why would they prefer to pass the constitutionally dubious (although now pretty well established by decades of precedent) "authorization for use of military force" over a formal declaration?

Anyway, back to my main point, it seems pretty clear to me that Obama's military campaign against ISIS is blatantly illegal under U.S. law. The administration's legal justifications for the attacks are pretty flimsy:
Administration officials have said that as a matter of domestic law, they believe that the United States has statutory authority to attack the Islamic State under Congress’s 2001 authorization to fight Al Qaeda. They also believe that Congress’s 2002 authorization of the Iraq war could provide an alternate source of such authority. The United States has been bombing Islamic State forces in Iraq since August.
ISIS is not al Qaeda. In fact, the two groups had a rather public break-up and al Qaeda disavowed ISIS earlier this year. Plus, the text of the 2001 AUMF does not give "authorization to fight Al Qaeda". Rather, it says:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
 ISIS did not plan, authorize, commit or aid the September 11, 2001 terrorist attack. The group did not exist in 2001. While ISIS grew out of Jama'at at-Tawhid wal-Jihad, which did exist in 2001, that group was not affiliated with al Qaeda and had no role in the September 11th attack. In 2001 its goal was to overthrow the government of Jordan. ISIS is not, to the best of my knowledge, "harboring" anyone who was involved in the 9-11 attack. The 2001 AUMF simply doesn't apply to them.

Likewise, the 2002 authorization for use of force in Iraq, while a little broader in scope (the language says (pdf): "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to... defend the national security of the United States against the continuing threat posed by Iraq"), the President has already declared the war in Iraq to be over and removed all U.S. forces from the country. Which means the "threat posed by Iraq", if there ever was any, had ended. I don't think you can reasonably interpret it to authorize American military force in Iraq at any point from 2002 until the end of time.

This is also Congress' fault. Obama announced his plans to bomb ISIS on September 10th. Congress was still in session then. It could have brought to a vote a new authorization for the use of military force (or even a formal declaration of war) before it left for recess. Congress then could have either accepted or rejected the campaign by its vote. But it didn't because politically members of Congress do not want to be accountable for this new war. As much as the President is grabbing the authority to effectively declare war from Congress, Congress seems to be happy to let him do it. Neither branch wants to follow what the Constitution says. So all we have left are a whole bunch of illegal wars.