Obama is right and HuffPo is wrong: He doesn’t need another AUMF to fight ISIS
Posted by: Jon Dougherty May 18, 2015
•As much as the Huffington Post would love to frame the administration’s fight against ISIS as somehow improper or illegal – or political – there are several reasons why it is none of those things
By Jon E. Dougherty
No, I’m not going all Mitch McConnell on you here, but when it comes to matters of national security, we have to get it right. We can’t just be “close.” And it should involve a minimal amount of politics.
A piece in the Huffington Post on Friday intimated that President Obama has no real authority to wage war against the terrorist regime known more commonly as the Islamic State of Iraq and Syria, or ISIS, because, as the headline suggests, Congress has neither debated the issue nor authorized the engagement. This is a case of naming the right issue but asking the wrong questions.
If you look at the terms of the Authorization for Use of Military Force (AUMF) signed into law (Public Law 107-40) by President Bush on Sept. 18, 2001, three things become readily apparent: 1) the authorization does not merely apply to the Iraq and Afghanistan war theaters – these were merely the regions where Bush chose to begin the fight against global terrorism; 2) the AUMF authorized presidents to wage war against terrorists and terrorism wherever the president decides a credible threat to the United States exists; and 3) there was no sunset provision built into the AUMF, meaning it is perpetual.
HuffPo reported:
Lawmakers voted 269-151 to pass the fiscal 2016 National Defense Authorization Act, which would, among other things, permit Congress to spend $89.2 billion on war funding. Republicans allowed 135 amendments to the bill, which covered topics ranging from immigration to remotely piloted aircraft to fire hoses being exempt from certain purchasing requirements.
But they shut out any debate on the need for an Authorization for Use of Military Force to put limits on the months-long war against the Islamic State. At the same time, the defense bill authorizes spending billions more fighting the group also known as ISIS. A handful of lawmakers tried to attach AUMF amendments to the legislation, but were denied.
“Last night, the Rules Committee voted down an amendment I offered to the NDAA in the form of a limited and narrow authorization against ISIS,” Rep. Adam Schiff, D-Calif., said Thursday. “The majority’s objection was that the defense bill was not the place to debate the war. Perhaps not, but if not here, where?”
HuffPo could be excused for its rank partisanship on this issue, lending more weight to Democratic arguments than those of Republicans, because, well, HuffPo is both rank and partisan. But Schiff, who was in the House in 2001 after the 9/11 attacks, should know better.
Claims that the AUMF is suddenly no longer the law of the land is either ignorant or a product of political partisanship on the part of lawmakers who have little regard for the Constitution. The language of the resolution plainly states that it was aimed at providing not just President Bush but future presidents with the Legislative authority to carry out anti-terrorist operations involving U.S. military force in perpetuity, and in parts of the world he deems necessary, for as long as necessary:
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States…
It was resolved:
(a) IN GENERAL.—That the President is authorized 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.
Whether true or not, the president has claimed that ISIS and al Qaeda, the latter blamed for the 9/11 attacks, are “one in the same,” and as such, the AUMF authorizes his actions against ISIS.
“[ISIS/ISIL], though they claim to be broken off from al-Qaeda, they were born of al-Qaida, and al-Nusra is an offshoot of al-Qaeda. So in our minds, from our military perspective, they are very much one and the same,” said Pentagon spokesman Navy Rear Adm. John Kirby in October.
“They can claim they’ve got differences with this or that group all they want, but we very much view them as one and the same,” he continued.
That declaration alone gives Obama the authority he needs, under the AUMF, to continue his actions against ISIS. The resolution is crystal clear on this point: The president – not the Congress, not the NSA, not some former CIA analyst with an axe to grind – gets to make this call. Obama has asked Congress for a new war authorization to engage ISIS, but it was unnecessary and more likely just political.
Even so, there was another event, just recently, that also gives Obama the authority he needs, but as commander-in-chief, not as the Executive branch complying with statutory law: The attack on the free-speech event in Garland, Texas; ISIS has claimed responsibility for it, which gives Obama (as it would any president) the constitutional and legal precedence to act in defense of the nation.
Is ISIS actually responsible for the Texas attack? The Obama administration thinks so. As early as last fall, the Department of Homeland Security and the FBI were warning that ISIS operatives could conduct “lone wolf” attacks virtually anywhere in the U.S., especially against U.S. troops. In recent days, DHS Secretary Jeh Johnson repeated the warning that ISIS operatives in the U.S. are a concern.
“We’re very definitely in a new environment, because of ISIL’s effective use of social media, the Internet, which has the ability to reach into the homeland and possibly inspire others,” he said.
And just last week, FBI Director James Comey told ABC News that “hundreds, maybe thousands” of Americans are receiving messages from ISIS urging them to join the group and launch assaults.
Nevertheless, HuffPo thinks Obama’s acting outside his authority:
It’s been nine months since President Barack Obama began directing airstrikes against Islamic State militants in Iraq and Syria. The Constitution requires Congress to declare wars, but in this case, Obama argues he doesn’t need the legislators’ sign-off because a sweeping 2001 AUMF covers his actions.
In actually, the Constitution divides war powers between the Legislative and Executive branches; yes, Congress “declares” and the president “leads” as commander-in-chief, but it has been generally understood throughout our history that presidents have inherent authority, lacking any congressional action, to act alone in defense of the nation.
If Congress chooses, it could pass legislation to sunset the AUMF and either issue a new authorization specifically aimed at fighting ISIS, or not (but it won’t because there are so many different factions fighting in the Middle East right now it is difficult to identify all of them and then identify their allegiances, which is pointless sometimes because allegiances can shift overnight).
However, that still wouldn’t matter, given the administration’s declaration a) that ISIS is a threat to U.S. national security; and b) ISIS has already taken credit for an act of terrorism committed on U.S. soil. Based on that declaration and resultant act, Obama (and future presidents) have all the constitutional authority they need, if not current statutory authority, to act in defense of the country.
As much as the Huffington Post would love to frame the administration’s fight against ISIS (or any terrorist group) as somehow improper or illegal there are several reasons why it is neither.