During a press call on Wednesday, a senior Obama administration official was asked whether or not the President had the authority to direct the military operations he has already begun and plans to ramp up against the Islamic State — generally referred to as ISIL by the White House.
The official repeated himself in the course of fielding a response: "The President has constitutional and statutory authority…. To be clear, we do not believe the President needs that new authorization in order to take sustained action against ISIL…. We believe we have the authority that is necessary to carry this out…. We have the authority to take action to protect the United States and our interests."
Yes, it was clearly a talking point. But in the face of such insistence, one wonders: Doth the official protest too much?
President Barack Obama's speech Wednesday was not about justifying war against the Islamic State; that was the gloss, a predictably vague parable of America-the-good standing up to evil and hate, "timeless ideals" versus "hate and destruction." But at its core, and more significantly, the speech was an announcement of the President's power to wage this war. Obama said, in no uncertain terms, that this would be a military effort initiated by executive decisions alone.
Here's the crucial passage: "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. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger." In these three sentences, Obama called congressional approval for a ramped-up fight against the Islamic State optional, a matter of "support."
Obama gave few details about the shape and progression of this latest leg of combat in Iraq. One thing is certain though: There will be a flutter of legal and political debate about the legislative framework by which the war on the Islamic State has been unofficially declared and will proceed. Will Congress vote on authorizing this significantly expanded military force? Will the administration be able to make a compelling legal defense of its decisions?
The answer to these questions is academic. Quite literally.
The existence of a state of war has been asserted even if it has not officially been declared by Congress. Jus ad bellum ["right to war"] has been assumed and retroactive legal justifications will follow — they always do. A number of commentators are mistaken in asserting that Obama "declared war" this week against the Islamic State. Rather, he announced an expansion of military force against the terrorist group.
Yes, it's war-mongering, and Obama certainly demonstrated "imperial hubris," as Bruce Ackerman noted in the New York Times. But the President did not unilaterally declare war without congressional approval because he is constitutionally unable to do so. Rather, the president asserts the authority as commander-in-chief under the imprimatur of an already existing, unwieldy War on Terror.
Those who are jumping up and down screaming 'That's illegal!' have not been paying attention to the last decade of US war-making.
Congress, the Constitution dictates, has the sole power to "declare" war. The declaration of war by congressional vote immediately confers a state of exceptional circumstance on the nation — an official state of war — and grants the commander-in-chief war powers. But Congress has not passed a declaration of war since World War II. Every conflict that has followed, including the Korean War and Vietnam War, were statutorily approved by Congress voting to authorize military force.
The shift away from declarations of war toward authorizations of military force in the last century is more than semantic — it reflects a changing geopolitical topography. The days of "perfect" war — cleanly delineated battles between nations or empires that notionally spanned discrete historical dates — are no more. We are in the globalized world of ongoing but limited war. And in this context, a number of conditions have contributed to making war-waging a very executive business.
Political scientists point to congressional desire to avoid responsibility for the ruins and pains of war; note the current Congress's efforts to avoid voting on military action against the Islamic State until the midterm elections have safely passed. Consider, too, the rise of technologically advanced intelligence gathering since the Cold War; techno-capitalism helps shape war as a stealth and secretive business, the details of which are often made accessible only to the executive branch. Shadow wars, CIA military campaigns, and the opaque work of special operations forces go on without public knowledge or congressional approval. It is in this context that a president can always point to some extraordinary circumstance of existing war or "imminent threat" or, as we see with the Islamic State, the mere fact of atrocity. Authority based in the letter of the law, in such context, need only be plucked from thin air.
In this particular instance, the Obama administration has dusted off the 2001 Authorization for the Use of Military Force Act (AUMF) as the grounds for the President's authority to attack the Islamic State. But AUMF was meant only to extend to nations and organizations that "planned, authorized, committed, or aided" the 9/11 attacks 13 years ago. The Islamic State is no longer affiliated with al Qaeda; in fact, the two groups are ostensibly enemies.
But those who are jumping up and down screaming "That's illegal!" have not been paying attention to the last decade of US war-making. Obama's use of drones are examples par excellence. The president claims the authority to extrajudicially kill US citizens, insisting that these targeted strikes are legally and constitutionally justified. When Justice Department memos delineating these justifications came to some light, though, we saw no more than spurious legal argument, reliant on dangerously loose and broad definitions. The Obama administration has consistently used legal justifications as a rubber stamp. Like grounding authority in AUMF this week, it matters little that the rationalizations are bunk.
The Obama presidency has been colored by poorly justified extraordinary executive acts of war. But this is not unique to this administration. Richard Falk, professor emeritus of international law at Princeton, articulated this fact in 1969 in his fierce Yale Law Journal criticism of legal arguments being used as the servants of policy, functioning as no more than transparent rationalizations, "less a figleaf than a see through garment," he wrote. The president "has the authority" because, like commanders-in-chief before him, he has taken it. The bothersome business of constructing a legal framework somewhat coherent with the Constitution is a matter of crossing t's and dotting i's. The authority to go to war with the Islamic State has already been established through the inescapably circular logic of legalizing warfare, in which war is justified because war exists.
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