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NSN Special Update – Military Action in Iraq: Assessing the Legal Authorities

 

Limited airstrikes by the United States against the Islamic State are entering their third week. The stated objectives of the strikes, which have hit about 90 targets so far, is to protect American personnel in Iraq and facilitate humanitarian relief. President Obama has signaled that military operations may increase in intensity and scope on the condition that a new government is formed in Baghdad that is inclusive of Iraq’s minority populations, especially its Sunni population. With Prime Minister Nouri al-Malaki having committed to step aside earlier in the month, Prime Minister designate Haider al-Abadi is pressing ahead in attempts to form a unity government. These developments in Washington and Iraq are increasing the possibility of a sustained American air campaign that may escalate in scope and objectives.

For policymakers, there is the immediate question of what legal authorities are – and are not – available for greater U.S. military action. While the details of this point have been subject to some confusion in Washington, neither the 2001 nor 2002 Authorization for Use of Military Force (AUMF) can or should provide legal authority for any expanded campaign against the Islamic State. Thus far, the Administration has claimed Article II authority under the Constitution to authorize military operations, but it’s unclear how much operations could potentially be expanded, or how long they could continue at their present scope, without a new authorization from Congress. Finally, asking what legal authorities should undergird any longer-term strategy towards the Islamic State should be considered in tandem with very specific questions about whether expanded military operations are appropriate at all and, if so, what the objectives should be and how they can be realistically achieved.

Any calls to use the 2002 Iraq AUMF as the legal basis of an expanded campaign against the Islamic State would not be consistent with the purpose of that law. Legal scholars Jennifer Daskal, Ryan Goodman, and Steve Vladeck explain, “On October 16, 2002, Congress authorized the President to engage in an international armed conflict with the State of Iraq in order to resolve concerns that Saddam Hussein was assembling weapons of mass destruction in defiance of Security Council resolutions. Almost every passage in the 2002 AUMF — including both the preamble and the operative paragraphs — is written with that express purpose and design. Indeed, the resolution even conditions the exercise of the authorized use of force on the President’s assurance that ‘further diplomatic or other peaceful means alone…is not likely to lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq.’ If Saddam had fully capitulated to all Security Council resolutions the next day, presumably the Iraq AUMF would have been, for all practical purposes, essentially defunct.” Importantly, the Obama Administration has called for the repeal of the 2002 AUMF. [Jennifer Daskal, Ryan Goodman, and Steve Vladeck, 6/17/14]

The Islamic State does not fit under the 2001 AUMF that was directed at the Taliban, al Qaeda and their associated forces – which does not include the Islamic State. Human Rights First explains that the 2001 AUMF, “has been construed by the executive branch and the courts to apply to al Qaeda, the Taliban, and their ‘associated forces.’ According to information provided by the administration, ISIS does not fall into any of these categories…ISIS has no substantial connection to al Qaeda, based on publicly available information and fails to fit the Obama administration’s own definition for an ‘associated force.’ The administration has stated that to be considered an ‘associated force,’ a group must be (1) an organized, armed group that has entered the fight alongside al Qaeda, and (2) co-belligerent with al Qaeda in hostilities against the United States or its coalition partners. The administration has further said that ‘an ‘associated force’ is not any terrorist group in the world that merely embraces the al Qaeda ideology.’ ISIS is neither a ‘co-belligerent of al Qaeda,’ nor has it entered the fight alongside it. To the contrary, al Qaeda has officially and publicly declared that it ‘has no links to the ISIS group’ and the two groups have engaged in hostilities against each other, with ISIS killing key al Qaeda leaders. With no operational connection to al Qaeda or the Taliban, ISIS cannot be considered an ‘associated force’ and is not a legitimate target under the 2001 AUMF.” [Human Rights First, 7/10/14]

So far, military operations against the Islamic State have been authorized by the President’s Article II constitutional powers as Commander-in-Chief, but expanded action should require authorization from Congress. The Daily Beast summarizes the authorities and implications of President Obama’s current limited campaign against the Islamic State, of which he has been formally notifying Congress: “Obama needed to inform Congress of the air strikes because the legal authority for the president’s new Iraq war stems from the U.S. Constitution’s Article II, which has been interpreted by modern presidents to allow the president to order military action abroad without the consent of Congress. The 1973 War Powers Resolution requires presidents to notify Congress when invoking Article II powers and to seek authorization from Congress if the new conflict lasts more than 60 days.” [The Daily Beast, 8/9/14]

While legal loopholes involving the War Powers Resolution mean it will likely be a political question whether the current scope of military operations will require an AUMF if they continue past 60 days, any enlargement in the objectives of the current campaign should be regarded as an armed conflict requiring authorization from Congress. Some reports indicate the Administration has started conversations with Congress about a potential new authorization, but gave no hard details.

If expanded military action and a new AUMF are called for, policymakers should be extremely specific and deliberative about what should be accomplished and what can be accomplished. Questions that should be answered before any expanded military operations are undertaken or authorized should include: What is the long-term strategy and does it have reasonable prospects of success? What are the objectives and are they achievable with the means the United States is willing to commit? Are the objectives necessary and are they proportionate to the threat? How does military action support a political solution? Are non-military tools adequately integrated into the strategy? What are potential unintended consequences and how can they be managed?  Any proposed new AUMF for the Islamic State should be subject to full and honest debate and should not be approved unless there are compelling answers to these and other relevant questions.