By What Authority?

On September 10, President Obama outlined a basic framework for U.S. intervention against ISIS. He explained that reasons for engagement as well as a four-part strategy, including:

Airstrikes in both Iraq and Syria
Increased support for ground forces: Iraqi, Kurd, and Syrian opposition forces
Traditional counterterrorism efforts
Humanitarian assistance for civilians

I’m fully in favor of parts 1, 3, and 4. My first concern is with the increased support for allied ground forces, including “Iraqi and Kurdish forces” and “the Syrian opposition.” The president gave his speech one day before the 13th anniversary of the 9/11 attacks. At least some of the roots of those attacks stretched back to the Soviet invasion of Afghanistan in December 1979 and the subsequent decision by the United States to arm anti-Soviet opposition fighters. Islamist fighters we thought were our friends (enemies of our enemy) subsequently lent either direct aid or at least a blind eye to anti-Western and anti-American leaders. The result was the Taliban and affiliated al Qaeda group.

Yet here we are 13 years later about to equip forces in a Syrian civil war.How confident are we that those we arm will follow our goals? Or that a victory for them will ensure that this equipment doesn’t contribute to other crises? Nor do we know how Russia (a long-time backer of Assad) will respond to this armament of the Syrian opposition (let along airstrikes in their ally’s territory). If I had to rank our potential allies, I’m most comfortable arming the Kurds, then Iraqis, then Syrians. But we really have no way of knowing. Flooding an area with more arms in order to end armed conflict usually only results in more death.

My deeper concern is with the president’s claim of authority. President Obama was careful to explain that ISIS is a “terrorist organization” and not a “state.” He made a point of linking ISIS to al Qaeda and characterizing our actions as a continuation of an ongoing effort to fight terrorism. Then, this key passage:

I have the authority to address the threat from ISIS, 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. (emphasis added)

Where did that authority come from? The Constitution doesn’t give him authority to declare war on ISIS. That leaves two recent Authorizations for Use of Military Force (AUMFs): one passed Sept 18, 2001 in response to the 9/11 attacks and one passed Oct 16, 2002 in prelude to the Iraq War. Though we formally withdrew from Iraq, the administration has been pointing to the latter AUMF as authorizing not only the use of force for ” defend the national security of the United States against the continuing threat posed by Iraq” by any threat ‘posed in Iraq.’ This is a gross misreading of that document. Similarly, the first AUMF has been stretched so far beyond recognition that it is now essentially a 28th Constitutional amendment granting the president extensive, unilateral war powers that could last for generations. (For an excellent discussion of the apparent limitlessness of these 60 Words, see the Radiolab episode of that name and this portion of a congressional hearing from 2013.)

If I could give Congress a spine, this is what I’d have them do:

Instead of tacking on support for the president’s plan to a spending item, write a separate bill.
That new bill should include a AUMF for the president’s plan, including a clear statement of geographical scope and a clear limitation regarding the use of ground combat troops.
That new bill should simultaneously declare that the Iraq War AUMF has expired.
That new bill should also replace the 9/11 AUMF with a more narrowly tailored anti-terrorism AUMF.

We know much more about the international terror network affiliated with al Qaeda now that we did a mere week after the 9/11 attacks. It’s time to take the opportunity to update our policy. The president’s desire to expand this war against ISIS creates a perfect opportunity for Congress to finally do what it should have done long ago.