Congress must vote before we expand the attacks on Islamic State

I haven’t written much about the latest developments regarding Islamic State/ISIS, the conflicts in Iraq and Syria, and the seemingly steady increase in American airstrikes against Islamic State (IS) targets in northern Iraq, mostly because I can’t honestly say that I feel like I have any better handle on what we should do or what we can achieve than anyone else. On the surface, it seems fairly clear that IS is the kind of potential threat that could be a serious problem for the United States and the rest of the world in the future if it is allowed to consolidate its hold on vast stretches of Syria and Iraq, essentially writing those nations out of existence as we know them today. Nations from the Arabian Peninsula to Jordan would be potential targets, and Iran would have yet another reason to reject the idea of slowing down its military buildup and nuclear program. Additionally, we shouldn’t dismiss out of hand the threats from IS to strike the United States even if they can’t hit us right now. On the other hand, though, it’s hard to see what the United States can actually do about the situation at this point. Airstrikes alone will not dislodge IS from the territory it now holds and nobody, not the Kurds, not the Iraqis, and not the Syrians, seems to be strong enough to dislodge them on the ground. That raises the possibility that American “boots on the ground” would be needed, but that seems to be a taboo political issue on either side of the political aisle.

While we debate what, if anything, to do about IS, though, it seems to be well beyond time for Washington to debate the question of what legal authority the president has to do what he has done so far and to expand American airstrikes into Syria, as some have suggested. Most recently, the White House asserted that the airstrikes in Syria that have occurred so far fall under the president's inherent authority as commander in chief. Indeed, the administration has apparently already begun surveillance flights over Syria, a precursor to such attacks, and is saying that it has no intention of seeking congressional approval before any strikes in Syria. As Molly O’Toole notes at National Journal, this raises the prospect of a war powers fight with Congress as we head into the midterm elections:

As the United States military’s intervention in Iraq intensifies, so does the debate between legislative- and executive-branch officials about President Obama’s muscular use of war powers.

In the past 10 weeks, Obama has authorized the first U.S. combat operations in Iraq since the war ended in 2011, and sent in roughly 1,000 U.S. troops.

The U.S. operation in Iraq is likely to extend beyond the 60-day limit under the War Powers Resolution that triggers congressional approval, meaning Obama may need a different authority to continue the fight. The president has used the sweeping 2001 Authorization of the Use of Military Force, or AUMF, to fight terrorist groups across the globe, but many argue it was primarily intended to authorize combat operations in Afghanistan, which officially end in December. The latest Iraq intervention represents what may be Congress’s last, best opportunity to rein in the dramatic expansion of the commander in chief’s authority to wage war that has occurred in the last 13 years.

The irony is that Obama just one year ago declared he would cut back the very authority his aides are now reconsidering. He pledged to chart a new path forward when he laid out his vision for a new comprehensive national security strategy to guide U.S. foreign policy.

“The AUMF is now nearly 12 years old,” Obama said at National Defense University in May 2013. “Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight, or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states. So I look forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.”

Today, gone is the talk of curbing unbound presidential powers to wage war. As the clock ticks, and Obama extends air attacks on the Islamic State in Iraq and Syria, administration officials argue that the commander in chief is operating within his authority.

“We comply with the War Powers Act and informed Congress on how many people we have,” Defense Secretary Chuck Hagel said Thursday. “This is not about mission creep.”

But Obama’s team quietly is considering whether they can use the original AUMF to shore up the president’s authority to conduct the growing U.S. military operation in Iraq.

“The president has the authority to take these actions,” National Security Council spokeswoman Caitlin Hayden told Defense One on Aug. 15. Obama has kept Congress informed, she said. If the Iraq operation continues past Oct. 7, however, Hayden demurred, “It would be speculative to discuss how the 60-day provision in the War Powers Resolution would apply to these two specific and limited U.S. military operations.”

But, Hayden said, “We are reviewing the applicability of the 2001 AUMF to this situation, which would be in addition to the president’s constitutional authority as noted in the War Powers Resolution report.”

It’s a notable shift from the administration’s position that Obama would work with Congress to ultimately sunset the AUMF altogether. The administration continues to support the repeal of the 2002 AUMF that authorized the Iraq War of 2003-2011.

This isn’t the first time that we’ve seen this issue come up during the Obama administration, of course. Three years ago, the president authorized American involvement in the war against the Qaddafi regime based solely on resolutions passed by the United Nations Security Council and, notwithstanding complaints to the contrary, ignored calls to seek congressional authorization for the action. Last year, as the president inched closer and closer to attacking Syria over the alleged use of chemical weapons, members of Congress from both parties called on the administration to seek congressional approval for any such action. Initially, the president resisted those calls but, eventually, he relented and announced he would ask Congress to authorize an attack, although no such vote was taken and no attack occurred. In no small part, one suspects that this was because it was becoming clear that neither the House nor the Senate were going to approve a resolution.

This time around, the president,at least initially, seems inclined to go with his initial instincts to keep this out of Congress’s hands, even though that is pretty inconsistent with the position he took as a candidate for president. In response to a Boston Globe Q & A session in December 2007, for example, the president had this to say:

In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites – a situation that does not involve stopping an IMMINENT threat?)

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.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. 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.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

Similarly, in an August 2007 speech before the AFL-CIO, the then-senator said that the American people had the right to know before military action is taken in their name, and the man who would become his vice-president said that a president who took nondefensive military action without congressional authorization would be a candidate for impeachment. As Conor Friedersdorf argues, the president would be wise to listen to his former self before expanding military action against IS:

Absent a declaration of war or a statutory authorization from Congress, the president can’t introduce the U.S. Armed Forces into hostilities save in “a national emergency created by attack upon the United States.” If the president lawfully begins hostilities abroad due to such an attack, then he has 60 days to engage in hostilities without congressional approval. A 30-day extension can be obtained, but only if “the President determines and certifies to Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.” The War Powers Resolution is not a 90-day blank check for war! It’s the same statute the Obama administration violated when it attacked Libya.

Obama should seek congressional approval before ordering any strikes on Syria because the law compels him to do so, but that isn’t the only argument for a legislative vote:

• The legislature is in a better position than the executive branch to carry out the will of the American people, which ought to dictate United States foreign policy.
• A congressional debate can help to test the arguments for intervention, which may well be wanting given the dearth of public scrutiny they’ve gotten.
• Every two years, Americans decide whether to keep or oust their representatives in the House. Knowing where they stand on hugely consequential matters of national policy is integral to the American system functioning.
• A war to defeat ISIS would be a huge undertaking. Embarking without the support of the citizenry casts doubt on whether the country would see the effort through.
• It is dangerous to give a single man the power to take a nation to war without anyone being able to do a thing to stop him. It is, in fact, anti-Madisonian.

Perhaps the most important reason that Congress needs to be consulted and to authorize any future action, though, is the fact that we seem, at the moment, to be headed down a very slippery slope. Everyone in the administration and at the Pentagon that has spoken about the attacks on IS and the threat that the organization poses has emphasized the fact that any effort to dislodge and defeat them is likely to be long and complicated. Inevitably, if we keep this up, we will be required to face the question of whether or not to commit combat troops to the effort, even in some limited numbers. If we wait until that point to get the representatives of the people involved in this process, it may well end up being too late in the sense that we will have already committed ourselves to the war against IS to such an extent that escalation becomes inevitable no matter what Congress or the American people may want. Before we get to that point, the president has a responsibility to take the matter before Congress, and Congress has a duty to consider the matter and vote on it.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.