President Obama has written five letters to Congress informing lawmakers of American military actions against the Islamic State of Iraq and Syria. The first four relied entirely on the president’s constitutional authority to conduct foreign policy and command U.S. military forces. In his latest letter Tuesday, however, Obama cited two additional authorities: the authorizations Congress gave George W. Bush to use military force, first after the September 11 attacks and later for the 2003 invasion of Iraq. Obama, of course, was a fierce critic of the Iraq war and has actually advocated repeal of the Iraq authorization — before he decided to use it for his present purposes.
Together, the letters show a president being gradually pulled into a conflict, and a region, he had dearly hoped to avoid. Obama’s first letter to Congress, on Aug. 8, was to announce operations — “limited in their scope and duration” — to stop ISIS forces advancing on Erbil, Iraq, and to relieve Yazidis trapped on Mount Sinjar. Obama told Congress that he ordered the action “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
On Aug. 17, Obama wrote to announce operations supporting the effort to retake the Mosul Dam. Again, he said he was acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” On Sept. 1, Obama informed Congress of more airstrikes related to the situations in Erbil, the Mosul Dam and Mount Sinjar. He gave the same constitutional authorization. And on Sept. 8, Obama told Congress of operations related to the Haditha Dam, again with the same authorization.
Now, with new air attacks underway, Obama has written a new letter advising Congress of a greatly expanded U.S. military campaign in both Iraq and Syria. “I have ordered implementation of a new comprehensive and sustained counterterrorism strategy to degrade, and ultimately defeat, ISIL,” Obama wrote, using his favored acronym for the Islamic State.
This time, though, the authorization paragraph was longer: Obama said he was acting “pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107-40 and Public Law 107-243) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.”
With that claim, Obama raised a momentous question: Do Public Law 107-40 and Public Law 107-243 actually apply to the current situation in Iraq and Syria? The first was passed by Congress on Sept. 18, 2001, authorizing George W. Bush 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 second, Public Law 107-243, was passed by Congress on Oct. 16, 2002, to authorize the invasion of Iraq. It’s a much longer document than the 2001 authorization, making an extensive case for action, but the thrust of it was that Saddam Hussein had violated repeated United Nations resolutions and was hiding stockpiles of weapons of mass destruction. It is, from the perspective of 2014, a historical document. In its entirety, it just doesn’t apply to today’s conditions.
The authorization does contain some clauses about Iraq being a haven for international terrorist organizations that could conceivably still apply. And the heart of the law authorized George W. Bush to:
The administration might be able to argue that clause (1) still applies to Iraq today — sorta. But the fact is that both Sept. 11 authorization and the Iraq War authorization are outdated and inapplicable documents when it comes to the war that Obama is now waging in Iraq and Syria. While some critics focus on the fact that Obama is now relying on Bush resolutions — surely a valid subject for some ridicule of the president who has so often portrayed himself as the anti-Bush — the bigger issue is that there is simply no congressional authorization that applies to the attacks Obama is now waging. To continue those attacks, he’ll have to get a new one.
Which means Congress will have to debate a new authorization. The only authorization Obama has sought, and won, so far is a very limited permission to train and equip some Syrian rebels. And even that authorization lasts only until Dec. 11. Plus the War Powers Resolution — which Obama cited in each of his letters to Congress as the reason he was keeping lawmakers informed — has a 90-day deadline, after which Obama would be required to seek authorization for military action. That deadline will have long passed by the time Congress returns from the midterm elections. And Obama administration officials have said the current campaign in Iraq is expected to take “years.”
Which means that when lawmakers return to Washington after the elections — and some of them will be lame ducks — there will, finally, be a real debate on the president’s military action in Iraq and Syria. Obama will no longer be able to bash, or rely on, George W. Bush. He’ll have to seek a real authorization, on his own, for his own war.
But what if Obama just ignores calls for an authorization and argues that he already has all the authority he needs to conduct a years-long campaign? It’s possible, although he’ll face a growing number of lawmakers, some of them in his own party, who disagree. Add to that a significant number of generally pro-Obama media figures who believe a new authorization is necessary. And then there is public opinion, which appears already in favor of congressional authorization. The president’s problem is that whatever he does, there will be a war debate in Washington by the end of this year.
