The Obama administration has offered no credible legal authorization for a war against Islamic State, and Congress plainly will not provide one.
What’s going on here, asks the shade of James Madison? Has the United States completely lost the part of the Constitution that imagines Congress and thus the people as a check on the president’s war powers? And if so, does it matter?
We can dispense quickly with the justifications that the administration has proffered in a piecemeal and somewhat embarrassed fashion. The 2002 authorization for the use of military force for the Iraq War says that the president can “protect the national security of the United States against the threat posed by Iraq.” But in bombing Islamic State, the United States isn’t protecting itself against the threat “by” Iraq. It’s protecting Iraqi residents from a threat “against” Iraq. Unless you think “by” and “against” mean the same thing, the 2002 authorization doesn’t apply. This is to say nothing of the fact that the Obama administration sought the repeal of the 2002 authorization before relying on it.
The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations have vastly expanded this language to cover al-Qaida affiliates and spinoffs that didn’t exist in 2001. But even these extensions don’t cover Islamic State, which is not only unaffiliated with al-Qaida but also at war with its affiliate in Syria, known as the Nusra Front.
That leaves the last refuge of the believer in inherent presidential power: Article 2 of the Constitution, which makes the president commander in chief. As a candidate, Obama harshly criticized the Bush administration’s near pathological reliance on the idea that this clause trumped all other legal restraints on the president when he was protecting the country. As president, Obama has relied on inherent presidential powers to an unprecedented degree.
At its maximum, commander-in-chief power gives the president the authority to use force in national self-defense without waiting for Congress. America’s national interests would certainly be implicated by the rise of an Islamic State statelet. But the U.S. is not defending itself against Islamic State in any meaningful sense. The brutal deaths of several journalists are a moral outrage, not a national security crisis. Obama has not given a credible public argument about why bombing Islamic State is an act of self-defensive war. Even if it were, the War Powers Resolution should then start ticking – and the administration won’t acknowledge that it applies at all.
So what, if anything, does the Obama administration believe authorizes its newest war? There are two real possibilities, and both are legally and morally preposterous. One is that the administration essentially believes that if it is bombing from the air or pushing a button from afar – as in a drone strike or a cyberattack – it isn’t going to war and doesn’t need legal justification.
Before you laugh at the preposterous idea that air war isn’t war, recall that the administration actually made an analogous argument when it ignored the War Powers Resolution during the Libya bombing. Somehow the idea that U.S. ground troops won’t be involved is supposed to transfer the category into something else – a humanitarian intervention or just global police work. The experience of continual drone strikes in countries with which the U.S. is not at war may have strengthened this perspective over the last six years.
The other possibility is that the Obama administration secretly believes that, if it’s killing jihadis, then it’s covered by the 2001 and 2002 authorizations as a kind of general catchall. This is legally indefensible, because those authorizations were specific to al-Qaida and Iraq respectively. Morally it’s worse still, veering dangerously close to the since-refuted Bush-era notion that the U.S. is in a global war against radical Islam. Again, however, the practice of constant drone strikes may well have created this unconscious norm in the minds of the administration’s actors.
What of it? Should the absence of a credible legal authorization for this war bother us? After all, the decision to go to war is often wrapped in only a thin tissue of justification – should the war on Islamic State be any different?
The answer is yes, and for a specific reason. It’s true that declaring war on another country often seems arbitrary as a matter of international law. But that’s a different question from whether the U.S. government is following its internal constitutional restraints in choosing war. The U.S. Constitution is designed to require that Congress take an active role in the decision to go to war – because the great majority of the framers believed that a republic should go to war only when the public supported that action.
Today’s Congress actively wants to avoid endorsing the war on Islamic State, in large part because it fears that, if put plainly before the American people, the war would be unpopular. Yes, Democrats fear alienating their base at the midterms – but that’s just a cynical way of saying that congressional Democrats want to avoid confronting public opinion. At the same time, Congress wants the president to be able to go forward.
This sets a dangerous precedent. This Congress may be winking at the president and telling him to proceed without authorization. But future presidents may want to go to war even when only a small part of the population approves – and they'll be able to say that even the liberal Barack Obama started a full-scale war entirely on his own. This moves us one click further away from the ideal of a republic that goes to war only when the public approves.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”