Obama’s legal justification for asserting the power to attack ISIS: ironic and weak

President Obama initially justified air strikes against ISIS on the legal theory that, as commander-in-chief, he has a responsibility to protect U.S. citizens and facilities. However, as Eli Lake points out, Obama’s battle against ISIS quickly expanded into an effort to protect Iraqi infrastructure. And now it has expanded into an effort (how serious we don’t know) to “degrade and destroy” ISIS.

By what legal theory does Obama justify this expanded use of military force? He justifies it under the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001.

The irony of Obama’s reliance on the AUMF could hardly be more stunning. Just last year, as Lake reminds us, Obama asked Congress to narrow the AUMF or even consider phasing it out. His rationale? All wars must come to an end, and the war against terrorism is winding down.

That’s how severely — criminally, I would say — Obama misjudged the paramount issue of protecting America from terrorism.

But what about the merits of Obama’s reliance on the AUMF? Does it authorize him to undertake a general military campaign to destroy and degrade ISIS?

Here is what the AUMF says:

[Th]e 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.

The question, then, would seem to be whether ISIS is an organization that Obama plausibly could determine planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons. It’s difficult to conclude that ISIS fits this description.

ISIS did not exist on September 11, 2001. Thus, it is impossible to say that it planned, authorized, committed, or aided the attacks that occurred that day.

ISIS is, to be sure, an offshoot of al Qaeda, the organization that planned and executed the 9/11 attacks. In fact, ISIS started out as al Qaeda in Iraq.

Thus, it can be argued that, as an affiliate of al Qaeda, ISIS falls within the AUMF’s description of those outfits the president is authorized to use military force against. Because neither ISIS nor al Qaeda in Iraq existed in 2001, the argument stretches the plain language of the AUMF, but it’s a colorable argument nonetheless.

The problem, though, is that al Qaeda has broken with ISIS and, reportedly, the two groups have even clashed militarily in Syria. This makes it difficult to argue that ISIS currently is an affiliate of al Qaeda.

A better argument might be that al Qaeda has splintered since 2001, and that both ISIS and the faction that purported to expel it from al Qaeda are successors of the group that attacked us on 9/11.

By analogy, suppose Congress had passed a resolution in 1920 authorizing the use of force against “Russian Communists” or “Leninists.” Ten years later, with Lenin dead and Stalin in power, who would be the “Russian Communists” or the “Leninists”?

Stalinists would qualify, I assume. But so too, arguably, would Trotskyites. (The split between the two factions is, in part, over the same ideological issue that divided al Qaeda and ISIS. ISIS, like the Stalinists, is focused in the short-term on imposing its will in a particular geographic region (its initial caliphate); al Qaeda, like the Trotskyites, has been intent, even in the short-term, on targeting the West).

Does viewing ISIS as one of al Qaeda’s successors make sense? Perhaps. Does viewing it this way bring it within the reach of the AUMF? Only by a very great stretch.

Assuming that Obama doesn’t want to seek specific congressional authorization to fight ISIS, he should probably rely not on the AUMF, but on the argument that John Yoo has outlined. Yoo relies on what he sees as the president’s inherent authority to initiate military hostilities to protect the national security of the United States.

Congress itself said, in one of the “Whereas” clauses of the AUMF, that the president “has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” As noted, the AUMF resolution itself doesn’t extend that far. But Obama can argue that the authority exists by virtue of the Constitution, with no need for congressional authorization.

For its part, Congress would prefer that Obama rely on the AUMF rather than on a broad assertion of presidential power like the one Yoo posits. So don’t expect too much congressional push-back unless the mission goes badly.

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