For the initial phase of airstrikes in Iraq, President Obama cited his authority under the Constitution to protect the American people. (Video via U.S. Central Command)
But now that he’s announced an escalated campaign against ISIS, will he turn to the same legal rationale?
“I have the authority to address the threat from ISIL, but I believe we are strongest as a nation when the president and Congress work together.” (Video via The White House)
That authority he’s referring to is the 9/11 Authorization for the Use of Military Force. It’s the law Congress passed on September 14, 2001 giving the U.S. broad powers to fight Al-Qaeda.
REAR ADM. JOHN KIRBY VIA C-SPAN: “We are at war with ISIL in the same way we are at war and continue to be at war with al Qaeda and its affiliates.”
Here’s the potential problem with that logic. The 2001 law authorizes force against those who “planned, authorized, committed or aided” the September 11 terrorist attacks. In other words, Al-Qaeda and its affiliates.
And as Vox rightly points out, “at the time of the 9/11 attacks, ISIS …. had no affiliation with Al-Qaeda.”
And although the two groups did at one point merge, Al-Qaeda has since disowned ISIS and the two are seen as rivals, even if they do have some of the same objectives. (Video via YouTube / أبو مصعب الغزي)
So, at best, the administration is using a broad interpretation of what Congress intended with its authorization of force in 2001.
WHITE HOUSE PRESS SECRETARY JOSH EARNEST: “The 2001 AUMF continues to apply to ISIL because of their decade-long relationship with al Qaeda, their continuing ties to al Qaeda."
At worst, as Benjamin Wittes of the Brookings Institution writes, the administration’s legal justification is “not a stable or sustainable reading of the law, absent some dramatic, non-public intelligence about the ISIS-Al Qaeda relationship.”
If that’s true, the administration isn’t without options. After all, in 2002 Congress authorized another use of force, specifically for Iraq.
PRESIDENT GEORGE W. BUSH: “These are opening stages of what will be a broad and concerted campaign.” (Video via CBS)
That authorization never expired. And even though the White House has previously asked Congress to repeal it, its use isn’t out of the question.
This, according to an unnamed administration official who had this to say to The New York Times: "The 2002 Iraq A.U.M.F. would serve as an alternative statutory authority basis on which the president may rely for military action in Iraq."
Even if the legal basis is there, invoking the 2002 Iraq resolution would certainly put Obama in an awkward position politically — considering he opposed that resolution and criticized other Democrats for supporting it. (Video via The White House)
OBAMA: “She was ready to give into George Bush on day one on this critical issue.” (Video via MSNBC)
The administration does concede it needs formal Congressional approval to aid the Syrian opposition. Congress has yet to vote on a $500 million aid package needed to train and arm the moderate rebels.